Is there a legal duty on a highways authority to consult with the public on proposed highway works eg resurfacing a public highway? Lodders Real Estate partner, Alastair Frew explains.
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.Crawley v Barnsley Metropolitan Borough Council  EWCA Civ 36
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 discussed in News Analysis: Highway maintenance—exploring the decision in Crawley v Barnsley Metropolitan Borough Council. The case revolved around section 58 of the Highways Act 1980 (HA 1980), where a highway authority can defend an action against it for damages due to non-repair but showing to the Court that it had operated a reasonable system for monitoring and repairing the highway.
As well as repairs, the highway authority may also carry out improvement works to an adopted highway, such as widening or the creation of new roundabouts, installation of guard rails or the creation of pedestrian refuges in the middle of the carriageway. The highway authority may also install or remove road humps.
If the proposed works are to be carried out on or near the highway, and are likely to restrict or stop the traffic flow, then the highway authority can make a Temporary Traffic Regulation Order under section 14 of the Road Traffic Regulation Act 1984. The emergency closure period is limited to five days to allow works, or 21 days in the event of danger to the public. This can be extended to up to six months, unless the Secretary of State awards a longer period. See Practice Note: Road traffic—order procedure and notices, in particular the section on process which covers consultation.
The highway authority must give seven days’ notice before making the order for closure. This notice must be published in the local newspaper and a sign must be prominently erected at each end of the proposed closure. If an emergency notice is required, the need to publish in a newspaper is dispensed with.
The highway authority may remove any item which is obstructing the highway, but must first give two months’ notice, by affixing such a notice to the item in question.
Other requirements to give notice of intention to carry out works
If the highway authority wants to stop up the highway altogether, it must give at least two months’ notice (HA 1980, s 116).
Under HA 1980, s 115, the highway authority may grant a third party a licence to carry on works to the highway on its behalf, in order to create amenities on highway land, such as the creation of pedestrian areas or even the planting of flower beds. Before any such works are carried out, the highway authority must post a notice on site giving at least 28 days’ notice.
The highway authority may repair a style or gate which is located on a public footpath, but only after giving 14 days’ prior notice.
If the works involve simply closing the highway in order to allow parade to pass, or for a street party, then the highway authority must also give notice.
Turning back to statutory undertakers, they must give notice to the highway authority before commencing works. The notice period varies from one month for non-urgent work which will cause traffic problems to just two hours in the case of emergency work to repair a dangerous situation.
Statutory undertakers are under a statutory duty to co-operate with the highway authority and with each other, in order to minimise disruption.
The highway authority may enter onto third party land in order to repair an unadopted highway, without notice, if the highway has become dangerous. The cost of the remedial works can be charged back to the landowner. The highway authority is not entitled to improve a private highway.
This article was first published by LexisNexis.