Section 5.5 - Section 56 Notices - Proceedings for an order to repair a highway

Relevant legislation

Highways Act 1980

Section 56. Proceedings for an order to repair highway

5.5.1 Procedure (HCC as respondent)

HCC as Highway Authority is under a duty to maintain public highways [HA80 s41]. Members of the public can enforce this duty by obtaining a 'section 56 notice' requiring the Highway Authority to repair a highway maintainable at public expense. If a section 56 notice is received it should immediately be copied to CSD who will need to know:

a) Whether the route in question is a PRoW?

b) Whether HCC is responsible for its maintenance?

CSD will then reply direct to the complainant and copy their reply to RoW.

Within one month HCC needs to serve a 'counter notice' or the applicant may go to the Crown Court for an order to make good the route. If HCC does reply the complainant may, within six months of the date of service on them of that counter-notice, go to a magistrates' court for an order to make good the route. If none of the above happens the notice will lapse after the six month period and the complainant must start again from step one.

The first question to answer for the route will be; Is it out of repair? An Officer should undertake a site inspection. If there is any question identifying the route then consider a site meeting with the complainant. 'Out of Repair' has been defined by case law to mean problems linked strictly to restoration of the highway surface, or a bridge forming part of the highway. It does not include:-

If there is disagreement as to whether the path is 'out of repair' it may be considered to allow the complainant to apply to the magistrates' court for direction, however magistrates may not always distinguish between 'out of repair' and obstructed.

If the complainant commences an action in the magistrates' court, this will be by summons, and the first date given will be for a pre-trial review of the issues involved. Highway authorities should be mindful that any complainant prepared to bring a case to court is at this point exposed to the risk of costs against, and is therefore likely to be reasonably confident of a successful outcome to the complaint. The pre-trial review may be before a senior clerk or a bench of magistrates. Directions will be given as to a future date for either a further review or the full hearing. The parties must exchange skeleton arguments, case authorities and witness statements in advance of the case coming to court.

If a complaint under s.56 comes to a hearing before the magistrates (who should be screened by the clerk to avoid council affiliations), then the court is competent to consider only three matters:

Whether or not the highway is out of repair is a question of fact for the magistrates to decide for themselves [s56(4)], although where the highway authority has admitted that the highway is out of repair it might be perverse for the court to hold otherwise. If the highway authority argues that the highway is not out of repair, it is up to the complainant to bring evidence - e.g. photographs, expert witnesses, user witnesses - and to make submissions on the legal issues involved. The highway authority may cross-examine and bring its own witnesses.

If the court holds that the highway is not out of repair, the complaint is dismissed and, in the normal way of things, the complainant will be ordered to pay the highway authority's costs. If the court finds that the highway is out of repair, then the complainant succeeds and will, in the normal way of things, be awarded costs against the highway authority. The court must then make an order directing that the highway be put into repair in a 'reasonable period'.

5.5.2 Procedure (HCC as complainant)

HCC can also serve s56 notices where some public liability to maintain routes exists and the route is 'out of repair'. It is recommended that the relevant landowner is approached to discuss potential solutions in advance of serving a notice. However, legal action, without notification, is appropriate for persistent offenders. The procedure is as above.