Highways and Their Creation
Meaning and classifications of highways, including the legal aspects and creation methods according to common law and statutes. Learn about the different types of highways and common misunderstandings surrounding their maintenance and ownership.
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Presentation Transcript
MEANING OF MEANING OF HIGHWAY, HIGHWAY, CREATION AND CREATION AND RECORDING RECORDING By By Ruth Stockley Ruth Stockley Barrister Barrister
What is a What is a Highway? Highway? No statutory definition. Essentially, a public right to pass over a defined route. 4 elements: Open to public at large; Public have right to use; Public right primarily for passage; Must follow a defined route.
Classes of Classes of Highway Highway 3 classes of highway known to common law: Vehicular/Carriageway highway; Bridleway; Footpath. THEY ARE ALL HIGHWAYS.
Classes of Classes of Highway Highway Categories of carriageway highways as defined by statute: Special Roads; Trunk Roads; Classified Roads; Principal Roads.
Classes of Classes of Highway Highway Other Categories of highways defined by statute: Roads used as public paths (RUPPS); Byways open to all traffic (BOATS); Restricted byways. Meaning of bridleway and of footpath: s.329(1) Highways Act 1980.
Basic Terms Basic Terms Commonly Commonly Misunderstood Misunderstood Highway Public Highway Adopted Highway Highway maintainable at the public expense Unadopted Highway Private Street
Creation of a Creation of a Highway Highway A highway can be created by statute or by common law. By STATUTE: By construction by a highway authority s.24 HA. By agreement under s.38 or s.25 HA. By declaration under s.228 HA. By order under s.26 HA.
Creation of a Creation of a Highway Highway At COMMON LAW: By dedication by landowner and acceptance by public. Dedication may be express or implied. Implied dedication may be at common law or under s.31 HA. A vehicular highway can no longer be created by implied dedication: s.66 NERCA.
Creation of a Creation of a Highway Highway S.31(1) HA: Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.
Creation of a Creation of a Highway Highway S.31 Requirements: Defined route; Use by public; Use for 20 years; Without interruption; As of right. Contrary intention.
Creation of a Creation of a Highway Highway Implied Dedication at Common Law: Burden of proof. No requirement 20 years as of right use. Acceptance still required. Creation may be evidenced by documentary evidence rather than use.
Recording of Recording of Highways Highways Highways are recorded in: Definitive Map and Statement kept under s.53 Wildlife and Countryside Act 1981; and List of streets kept under s.36(6) HA. TOTALLY DIFFERENT RECORDS.
Definitive Map Definitive Map and Statement and Statement Surveying authorities under statutory duty to keep under continuous review definitive map and statement: s.53(2) of 1981 Act. Definitive Map records public rights of way. Definitive Statement records details of routes, including position, width and limitations.
Definitive Map Definitive Map and Statement and Statement S.56(1): Definitive Map and Statement are conclusive evidence as to particulars contained in them as of relevant date. However, they are only conclusive evidence as to the particulars contained in them. Definitive Map and Statement should be modified by a DMMO if and when any of the events in s.53(3) arise.
List of Streets List of Streets All local highway authorities must maintain an up to date list of highways maintainable at the public expense: s.36(6) HA. Street means any highway . The list is a record of ALL publicly maintainable highways, which include public paths, but not necessarily of all highways in that highways not maintainable at the public expense need not be shown.
List of Streets List of Streets NOTE: No requirement to record width or any other particulars. How digitised map is produced. Often (erroneously) excludes public paths. Only required to include highways maintainable at the public expense. If includes other highways, must make it clear which are publicly maintainable. It is not conclusive evidence, but merely cogent evidence of its contents.
Effect of NERCA Effect of NERCA S.67(1) NERCA: An existing public right of way for mechanically propelled vehicles is extinguished if it is over a way which, immediately before commencement (a) was not shown in a definitive map and statement, or (b) was shown in a definitive map and statement only as a footpath, bridleway or restricted byway. But this is subject to subsections (2) to (8).
Effect of NERCA Effect of NERCA One such exception is that the way was recorded on the s.36(6) list of streets as a highway maintainable at the public expense as of May 2006. Hence, the recording of a vehicular highway on the Definitive Map or the List of Streets prior to May 2006 is crucial to its continued existence, subject to other exceptions.
