How to get a path properly maintained

Highway authorities (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, you can use the law to oblige 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 authority six months to repair the path. If the authority fails to do the necessary work in time the applicant can apply to the magistrates' court for an order to force it to do so.

When should this method be used?

Section 56 can only be used on a path which is:

  • Publicly maintainable - this means that it’s the job of the highway authority to keep the path properly repaired. 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 say whether the right of way is publicly maintainable or not. If the right of way is not publicly maintainable you can abandon the procedure.
  • ‘Out of repair’ - 'Out of repair' refers specifically to problems with the surface of a right of way or a bridge forming part of it. An out of repair path may have vegetation growing out of the surface, or be flooded because of inadequate drainage. A bridge might have been washed away. If a right of way is obstructed it is not out of repair, and the procedure for tackling obstructions should be used instead.

The section 56 procedure shouldn't be used as a first resort. A maintenance problem should be reported to a highway authority first 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 you have with the highway authority on the subject. This will be useful if you end up making an application to the magistrates' court.

How does it work?

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 one.

If the authority fails to act on the notice and the complainant decides to apply for a court order, he or she must be able to do the following:

  • Produce the original notice (and the counter-notice received from the authority)
  • Prove that the path is out of repair (for example by calling a witness to corroborate the facts and producing photographs to show the state of the path)

It’s very important to note that although there is no charge for initiating this procedure and serving the notice on a council, there are significant charges associated with bringing an action in a magistrates' court and, if your application is dismissed, you may be liable for costs.

Because of the risk of costs we strongly advise people considering an application to the magistrates' court to take legal advice beforehand.

Template notice and magistrates' court application form

We've produced a template notice and an annotated version that explains how to complete the document. We also have a template magistrates' court application form available and an annotated version explaining how to complete the form: