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Highways: What would constitute a nuisance under the Highways Act?

05/10/2018

Is there a definition of what would constitute a nuisance under section 149 of the Highways Act 1980? Section 149 of The Highways Act 1980 states: If anything is so deposited on a highway as to constitute a nuisance, the highway authority for the highway may by notice require the person who deposited it there to remove it forthwith. Lodders Real Estate partner, Alastair Frew explains.

The statutory definition

This statutory definition leaves us with a problem; we know that causing a nuisance is an offence, but what is a “nuisance”? S149(2) then continues to provide some guidance by stating that anything “…unlawfully deposited on the highway [that] constitutes a danger…” may be removed by the highway authority, at the cost of the person who has placed or left the item on the highway.

So, an item which causes an obstruction to the highway, or which blocks the view along the highway, can be said to be a nuisance. Can anything else be said to be a “nuisance”?

In his article LexisNexis article “Nuisance on Highways” Nicholas Hancox explained that the ancient common law relating to the nuisance is incorporated into the Highways Act 1980, which is the primary location for modern highways law in this country. As Hancox also explained, Pratt and Mackenzie’s Law of Highways (21st edition, 1967) defined a highway nuisance as ‘any wrongful act or omission upon or near a highway, whereby the public are prevented from freely, safely and conveniently passing along the highway’.

Nuisance

Defining “nuisance” is a little bit like describing a Flamingo – everyone knows one when they see it, but putting a description into words is less straightforward.

The best starting point is to say that a nuisance is something which causes an interference with the public right of way along a highway. Can members of the public freely pass and re-pass along the highway, which includes both the carriageway and any footway? If the answer is “no”, then that public right has been interfered with. If someone can be said to be to blame for this, then that person has caused a “nuisance.”

Blocking part of the highway, so that people have to walk around your blockage will create a nuisance, unless the blockage is tiny.

Placing a builder’s skip in the highway is a blockage, and therefore a nuisance, unless you have a permit from the highway authority. Equally, erecting scaffolding on the highway is a nuisance (and an offence under s169 of the Highways Act 1980) unless a permit is granted.

It follows that parking a car on the highway should also be a nuisance, as it is just as much of a blockage. However, is has become customary in this country to park cars on the highway, without people considering them a danger to passing pedestrians and traffic, so this is in fact NOT a nuisance. But, if the owner abandons the car then it IS a nuisance, because it is not customary in this country to abandon cars on the highway! Please note that certain highways are the subject to specific by-laws and restrictions, which can make parking or even stopping on the highway into an offence. Here again, common sense and “what the public expects” comes into play – if I stop my car because it has broken down, I may be causing a blockage but I am only causing a nuisance if I then do not take proper care to alert other road users, and take prompt action to have my vehicle moved. If I simply dump it on a blind bend and stroll away in the direction of the nearest town, I will be liable for prosecution.

Interestingly, it is not automatically a nuisance to park on the footway (ie the pavement) but the owner of the car should be very careful to ensure that a blockage is not caused (and it is a separate offence to drive on the footway).

As the highway is intended for all of Her Majesty’s Subjects to pass and repass, anyone who travels too fast can be said to be causing a nuisance. We have speed limits for motor vehicles, but cyclists are currently still subject to the old offence of “wanton and furious cycling” – if you cycle so fast that you cause other road users to have to jump for safety, you are causing interference, and as there is no lawful excuse for it, you are causing a nuisance.  Anyone wishing to race in a car or on a bicycle on the highway needs to obtain a licence. Foot races are given more leeway because they cause less danger to the public, but even so a large fun-run will require a licence from the highway authority; the runners will be causing interference, so will require statutory permission.

The list of examples goes on, but in each case the Court asks the question; did the “thing” interfere with normal use of the highway ? If “yes”, then was this interference justified by common practice or by way of a permit? If the answer to this second question is “no”, then a nuisance to the highway has been caused.

This article was first published by LexisNexis.

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Get in touch

For more information, please contact Alastair Frew on 01789 206117 or drop him an email.