A highway out of repair is one where the surface is defective or disturbed.
What can you do if you live in England or Wales and the path that you use becomes out of repair? There may be a right to deviate to get around the defect, but what can you do if the defect is reported to your local council, and no action is taken?
This information sheet provides details about what you, as a member of the public, can do. It covers the process of making an application under section 56 of the Highways Act 1980, and what your involvement might be in the process thereafter.
In particular, it considers:
- the types of highway that are affected and how the legislation applies;
- who is responsible for putting the way into repair?
- when might an application be needed?
- what is the process?
- what do you need to do before making an application?
- what information will you need to collect?
- how is the application made?
- other points to note—costs; timescale; data protection; legislation & guidance
Background details and further information are also provided in the ‘Impassable Paths’ information sheet. The problem of highways being out of repair is not a new phenomenon. The section 56 process is the successor to what was historically referred to as a ‘Presentment’—court records of which are known to go back several hundred years.
This fact sheet is brought to you by the Open Spaces Society. We campaign for stronger protection for common land, village greens, open spaces, and public paths in England and Wales, and for greater opportunities for everyone to enjoy them. As a small charity, memberships are vital to our ability to continue to support more than 900 cases annually helping individuals, groups and communities to save their local green spaces and paths. Individual membership costs £3/month. Join us today.
Highways, which include footpaths, bridleways, restricted byways and byways open to all traffic, are protected by legislation under the Highways Act 1980. Every Highway authority has a duty, set out under section 41 of the Highways Act 1980, to:
maintain highways maintainable at public expense.
The highway authority is the county council or unitary authority (in England), county or county borough council (in Wales) or London borough council. Please note that not all highways are maintainable by the highway authority. Details about who might be responsible for maintenance are given in the next section below.
The Highways Act 1980 also makes it possible for anyone to take action to get the highway repaired. This is set out under section 56, which enables anyone who alleges that:
a way, or a bridge, is a highway which is maintainable, and it is out of repair'
to serve notice on whoever is liable for the maintenance of that highway. If no action is taken, this can be followed by making an application either to the magistrates’ court (where liability is admitted, but the highway authority takes no action to repair); or to the crown court (if there is no admission of liability by the highway authority).
‘A highway out of repair’ has been defined as where ‘the surface of it [the highway] is defective or disturbed in some way’; or 'has become unsound or impaired by neglect or use’. So, in the case where a path is ‘out of repair’, it is the surface of the path that needs to have physical works carried out on it in order to repair it. See Impassable Paths for more details, including the difference between a path that is out of repair and a path that is obstructed. If the path is obstructed, you may be able to use the section 130A process.
The section 56 process involves civil, rather than criminal, proceedings. There are potential costs involved when cases are taken to court. More details are given in the section on costs below. These costs relate both to the fee for making an application and to the payment of costs by the losing party to the winning party, if any costs are awarded by the magistrates. The fee for making an application to the magistrates' court as at January 2020 was £226. If the application were contested, a further fee of £567 would be payable by you, resulting in a total fee of £793.
Few cases are likely to begin in the Crown court, and the potential liability for costs can be exceptionally high. We advise you to take legal advice before contemplating proceedings in the Crown Court.
 Highways England is the highway authority for motorways and trunk roads.
 Hereford and Worcester CC v Newman  1 WLR 901
The responsibility for maintaining a highway does not always lie with the local highway authority. Highways can be maintainable at public or private expense, or there may be no liability for anyone to maintain it at all.
The best starting point to find out if a route is maintainable is to contact your highway authority.
It will hold records of the ‘highways maintainable at public expense’. It may also have information about who is responsible for routes that are not maintainable at public expense.
Please also be aware that there may be an agreement between a county council and:
- the parish or community council to carry out the maintenance of footpaths, bridleways and restricted byways
- the district council to carry out the maintenance of footpaths, bridleways, restricted byways and some roads
within their respective areas. While these councils may have undertaken to carry out the repairs, you will need to report any defects to the highway authority. This is because it is the highway authority that remains responsible for ensuring that the highways are maintained.
The reason why a highway might not be repairable at public expense is down to history. Initially, a highway was a right of passage with no obligation on the owner to maintain it. By the 1600s, however, unless it could be shown that responsibility lay with a particular individual or body, there was a duty imposed upon the ‘inhabitants at large’ of the parish to maintain ‘the King’s Highway’. In 1959, this became a duty to maintain ‘highways maintainable at public expense’.
As a result, while some highways are maintainable at public expense, other highways are privately maintained, such as a private street; or by reason of tenure, enclosure, or prescription. For example, where a railway line has been built, and the pre-existing highway has been moved so that the highway now crosses over a bridge, it is most likely that Network Rail would be the body responsible for the structure that carries the highway and consequently responsible for maintenance of the structure.
For rights of way, any rights that were recorded on the council’s definitive map and statement (DMS) prior to 1959 are automatically maintainable at public expense. Any rights that have been added to the definitive map since that time are likely to be maintainable at public expense unless they were based solely on 20 years’ recent use.
under section 43 of the Highways Act 1980, or under an agency arrangement
 under section 42 of the Highways Act 1980, or under an agency arrangement
 i.e. a liability attached to property
 e.g. where the public has acquired the right to deviate onto unenclosed land adjoining a highway when the highway is impassable, and the landowner encloses the land with a fence, the landowner, or the landowner’s tenant, becomes liable to repair the highway
 i.e. long-standing custom
When a highway is impassable owing to problems with the surface, action needs to be taken. A route may be impassable for various reasons, including flooding, deep mud, vegetation growth through the surface, or a dangerous surface on a bridge.
You, as a member of the public, can take steps to get highways repaired. If you have reported the defect to the highway authority, and no action has been taken, you can follow the process that is set out in section 56 of the Highways Act 1980.
An application can be made where:
- a way or bridge is either a highway maintainable at the public expense, or is a highway which a person is liable to maintain under a special enactment or by reason of tenure, enclosure or prescription, and
- is out of repair
This information sheet deals only with highways maintainable at public expense. If the highway is privately maintainable, we advise you to seek legal advice.
When contacting the highway authority, please check first whether it has an on-line fault reporting system on its website. If you want to speak to someone, it is likely that you will need to report it to a call centre and leave your details for someone to call you back. Depending on the issue, it is likely that this will be a rights of way officer.
Start by asking the highway authority if the route that has the defect is a public highway, and, if so, whether or not it is a ‘highway maintainable at public expense’. If it is maintainable at public expense, you will need to ask the authority if it is aware of the problem, and, what action will it take to resolve it and by when?
The highway authority may accept that the route is a highway, but then tell you that it is not ‘maintainable at public expense’. If that is the case, you should ask for an explanation for its conclusion, and ask who is responsible for the route’s repair. It is possible that there is no-one responsible for repair. In such cases, you may need to ask what the highway authority is doing to ensure that it is safe for people to use the route.
If you have contacted the person responsible for maintenance, and have not had any success with getting the highway repaired, it is possible for you to take the matter to court.
Before applying to court, it is recommended that you have:
- checked that the defect is enduring and persists,
- collected evidence,
- identified witnesses who will testify to the defect, and
- prepared your case.
It may take many months before the matter comes to a court hearing. If the defect is seasonal—for example, exceptional mud in winter which dries out in summer — you will need good evidence that the defect occurs seasonally, is likely to recur, and was not the consequence of an ‘Act of God’, such as exceptional flooding or rainfall.
A flowchart is available setting out the required steps (with timescales) of the process.
You will need to contact the highway authority to establish, in writing whether or not:
- the bridge or way is a highway and, if so, of whether is it a footpath, bridleway, restricted byway, or public road (including a byway open to all traffic),
- the route is highway maintainable at public expense,
- it agrees that the highway is out of repair
- it will repair the route (if it is its responsibility), and when this will be done.
It ought to be possible for you to find out if a route is maintainable at public expense by looking at the council’s record which is called the ‘list of streets’. These details may be available on the council’s website in its highways section, but the record may be referred to as the ‘gazetteer’. The gazetteer may contain more information than could be found in the list of streets.
You will need the following.
- Photographs of the problem. You might wish to do this on a regular basis, say monthly, to show that it is not a seasonal problem (although a highway should be passable at all times of the year, extreme weather conditions apart). It would be embarrassing if the court inspects the way in high summer, and finds, say, that the claimed flooding and mud are entirely absent, and you have insufficient evidence to prove that it occurs at other seasons of the year. Whoever takes the photographs must be willing to appear in court to say that they had taken the photographs, together with the date and the location etc.
- Copies of all correspondence on the matter.
- Copies of all notices sent or received.
- Proof of service of the notice on the respondent.
You (who would then be known as ‘the complainant’) must serve a notice on the highway authority (who would then be known as ‘the respondent’). (There is no official notice, but the wording to use can be found in the Blue Book Extra).
To serve notice, you will need to:
- know the name and address of the respondent,
- identify the section of the way, or bridge, and
- identify the nature of the problem.
The notice must require the highway authority to state, within one month, whether:
- it admits that the way or bridge is a highway, and
- it is liable to maintain it.
The notice needs to be:
- made in writing, and
- delivered to the highway authority:
- either by post (signed-for delivery is recommended),
- or by hand,
to the chief executive.
If you do go to court, you will need to be able to prove that you served the notice correctly.
The highway authority should reply, within one month, by serving a notice on you, the complainant. It may:
- accept that the route is a highway which it is liable to maintain,
- deny either that the route is a highway, or that it is liable to maintain it,
Alternatively, it may not reply at all (although it is required to do so).
Ideally, the highway authority, motivated by the notice, will now advise you of its plans to address the defect. If so, and if you are satisfied by those plans, you need do nothing further other than monitor progress. If the highway authority fails to implement its plans, you may have to start again.
If the respondent admits both that the way or bridge is a highway and that it is liable to maintain it, but makes no proposals to address the defects, then you, as the complainant, can apply to magistrates’ court. You would need to use the application form found in the Blue Book Extra, to apply to magistrates’ court.
Even if the highway authority, in its response, says nothing about its plans to address the defect, you may wish to discuss with the relevant officer what steps it will take to sort out the defect and by when, since the resolution of the problem may already be in hand.
If you do wish to apply to the magistrates’ court:
- you have six months from receipt of the respondent’s notice to make the application;
- your application would be for an order requiring the respondent to put the highway into proper repair within such reasonable period as may be specified in the order.
- Alternatively, if the highway authority:
- serves a notice on the you, the complainant, but denies either:
- that the way or bridge is highway, or
- that the highway authority is liable to maintain it,
- serves no notice on you at all,
you, the complainant, may apply to the crown court. However, we do not deal with that here.
It is possible that the highway authority may admit that the route is a highway, but that is it not ‘out of repair’ as the public highway rights which are recorded are not of the status that you are claiming. For instance, a route might be recorded as a public footpath, but is being used by vehicles to access houses. A private right of access for vehicles might have been granted, but without any liability on the householders for the maintenance of the route. The footpath may be in a suitable state of repair for pedestrians, but may fall short of the standards expected by those who are using the way with vehicles. But the highway authority is not required to maintain the route as fit for vehicles.
If you do go to court, and it is found that the way or bridge is a highway, that is maintainable, and that is out of repair, the court ought to make an order:
- requiring that the highway is put into proper repair
- specifying a reasonable period for this to happen
If, following an order, the highway is not repaired, it is possible for the case to be brought back to the court. A further order can be made either extending the period for effecting the repair, or enabling you, the complainant, to carry out such works as may be necessary to put the highway into proper repair and for you to recover your costs from the highway authority.
Please note that it is possible for the court’s decision to be appealed to a higher court—either the crown court (typically on a factual question of whether the way is out of repair) or the high court (on a point of law).
 The Blue Book Extra is an online resource for readers of Rights Of Way: A Guide to Law and Practice (commonly referred to as the 'Blue Book') See BR07 - Forms for use in legal proceedings.
If the application is heard by the court, the court has a power to award costs against the unsuccessful party—this means that if the court decides that the highway is not out of repair, it may decide you have to pay the council’s costs.
In the case of Riggall v Hereford County Council in 1972, an application was made for the highway authority to repair a highway adjoining the applicant’s property. The court found in the complainant’s favour that the road was a highway repairable at public expense. However, the court decided to make no order as to costs, on the grounds that the repair would involve great expense, would be of potentially little value to the public, and would be of a substantial advantage to the complainant. The complainant was dissatisfied with this decision on costs, and the case was referred to the high court. At the high court, it was decided that the general principle that costs follow the event should apply and the complainant should be awarded costs against the council.
The judge also reserved, for further consideration on another day, the respondent’s argument that:
…if the complainant in proceedings such as the present is acting merely as a member of the public, there may well have to be some discretion left [to the court] to deprive him of his costs, after success, on the footing that he is no more than a member of the public, and the public themselves had not benefited adequately out of the bringing of the proceedings’
So, it is important to note that full payment of costs is not automatic even in the event of the court deciding to make an order for repair, and it should be remembered that, in any case, the amount awarded is at the court’s discretion.
If you win, you can ask for your costs, but if you lose, it is likely that costs would be awarded against you. However, it might be that you do win, but you are not paid your full costs, since the court decides the amount of the award you would be paid. The court might reduce the amount of the award of costs after taking mitigating factors, such as the actions of the complainant or the respondent, into account.
You need to consider that, if you lose, you may be liable for the highway authority’s costs (which could be substantial) as well as your own. The authority is likely to be represented by its solicitor and, if the solicitor instructs a barrister, the costs could be very high indeed—perhaps £20,000 or more for a modest hearing, including the authority’s preparatory work. Again, the court decides the amount of the award that you would have to pay, and this might be reduced by taking mitigating factors, such as the actions of the complainant or the respondent, into account.
You would need to make sure that you have your costs prepared before going into court, as you would need to ask for them before the court closes the proceedings.
You need to keep an account of your costs in order to be able to present them to the court. These costs would include the following.
- The fee for making an application to the magistrates’ court.
- The cost of serving the application on the court (eg postage).
- Cost of any legal advice given on the application or by means of representation at court.
- Your time preparing your case for the court.
- Your printing expenses.
- Your travel expenses.
- Your witnesses’ travel expenses.
- Cost of copies of any documents produced.
If the highway is not repaired within the timescale set by the magistrates’ court, you, as the complainant, can be authorised to do the work. In this case, you are entitled to recover from the highway authority your reasonable expenses incurred in carrying out the work.
 Riggall v Hereford County Council  1 All ER 301
Timescale - You will need to start by contacting the highway authority about the defect and to see if it will take action. This could take a month or more. If you need to serve notice, the respondent has a month to respond. If you do apply to the magistrates’ court, you need to do so within six months of the respondent’s notice. The court will then need to set a date for the hearing, which is likely to be after several months. If the court finds at the hearing that the highway is out of repair, the court will give a reasonable time for the repair to be carried out. The whole process may very well take more than a year.
If the court’s decision is appealed to a higher court, it is likely to take another 12 months to resolve.
Legislation—The legislation relevant to highways out of repair can be found at:
- Highways Act 1980, Sections 41, 42, 43, 49, 50, 56, 58
Guidance – There is guidance given to local authorities in Wales, but no such corresponding guidance for England.
- The guidance for Wales is given in ‘Guidance for Local Authorities on Public Rights of Way (October 2016)’ at paragraph 2.18. It suggests that authorities publish a prioritisation scheme to address maintenance or protection of the network. This scheme may then be taken into consideration by the court when deciding what would be a reasonable time for undertaking repairs in relation to applications made under s56 of the Highways Act 1980.
While the Open Spaces Society has made every effort to ensure the information obtained in this fact sheet is an accurate summary of the subject as at the date of publication, it is unable to accept liability for any misinterpretation of the law or any other error or omission in the advice in this paper.
© Open Spaces Society, September 2020