Highway authorities (i.e. county councils and unitary authorities) are responsible for maintaining most rights of way. Where a highway authority fails to keep a right of way in a proper state of repair, it's possible to use the law to compel it to do so.
Section 56 of the Highways Act 1980 enables any member of the public to require a highway authority to restore the surface of a right of way, or a bridge that forms part of a right of way. It's a simple procedure which gives an authoirity six months to put a path back into repair. If the authority fails to do the necessary work in time the applicant may apply to the magistrates' court for an Order to force it to do so.
Section 56 can only be used on a path which is:
- publicly maintainable
('Pubicly maintainable' means the highway authority is responsible for upkeep. If you aren't sure whether a right of way is publicly maintainable you should begin this procedure anyway, because the first step is to ask the highway authority to admit whether the way is publicly maintainable or not. If the way is not publicly maintainable you can abandon the procedure) - 'out of repair’
('out of repair' refers specifically to a defect in the surface of a right of way or a bridge forming part of a right of way. An out of repair path may have vegetation growing out of the surface, or be flooded because of inadequate drainage. If a right of way is obstructed it is not out of repair, and the procedure for tackling obstructions should be used instead.)
Please note that the section 56 procedure shouldn't be a first resort. A maintenance problem should first be reported to a highway authority so they have a chance to look into the matter and decide how best to deal with it. It's a good idea to keep copies of any correspondence with the highway authority on the subject, as this will be useful if you end up making an application to the magistrates' court.
The procedure begins with a notice served on the highway authority by a member of the public (referred to as the complainant). The notice must be in the name of an individual and that same individual must make any application to a court. If there's more than one problem, separate notices must be served for each. The timetable is as follows: Section 56 flow chart
If the authority fails to act on the notice and the complainant decides to apply to a court for an Order, he or she must be able to do the following:
- prove service of a summons on the highway authority
- produce the original notice and the counter-notice received from the authority
- prove that the path is out of repair (by calling a witness to corroborate and produce photographs demonstrating the state of the path immediately before the service of notice. It must be possible to ‘prove’ the photos: e.g. by calling the photographer to give evidence).
We've produced a template notice which can be downloaded here, and an annotated version that explains how to complete the document.
A template magistrates' court application form can be downloaded here, and an annotated version explaining how to complete the form can be found here.
