Tuesday, 17 April 2018


Every so often, a story appears in a newspaper about a road which doesn’t appear to be being maintained at all. In fact, it’s far worse than any normal potholed road which is found up and down the country.
[Incidentally, as the government has made big cuts to councils to undertake road maintenance, the backlog of repairs has risen to £9.3bn, with more than 24,000 miles of streets in England in need of urgent maintenance in the next year alone.]
Similarly, most Members of Parliament have received delegations of residents, or users, of one of these un-maintained roads asking for support to get the council/the government/anyone to take responsibility and pay for the road to be fixed.
What we are talking about is an ‘Un-adopted road’, that is a highway that is NOT maintainable at public expense. There are an estimated 40,000 of these roads in England and Wales, totalling more than 4000 miles. In 2009, it was estimated that it would cost more than £3bn to bring them up to standard.
Well, how does that come about? As with all such things, there is a fascinating historical background, which is neatly summarised in a recent publication1 from the House of Commons’ Library.
It includes the fact that in the mid-16th century, the King wasn’t spending enough money to maintain the King’s Highway (sound familiar?) so he gave the responsibility to the parishes (a forerunner to modern councils). Parishes paid for the repairs by requiring residents to work without pay and by levying property taxes. This free labour was limited to a maximum of six days per year by a 1555 law.
The Highways Act 1835 provided that new roads were not to be the subject of the inhabitants' duty to repair highways unless a formal procedure for adoption was followed. This was eventually extended to public paths. This created a class of highway which no one was liable to repair.
As a result of the Highways Act 1959, as regards liability to repair, highways were divided into three main classes:
(1) highways repairable at the public expense;
(2) highways repairable by private individuals or corporate bodies; and
(3) highways which no one is liable to repair.
It also replaced the concept of highways repairable by the inhabitants at large of an area by that of highways maintainable at the public expense.
Then, in 1980, with the passage of a new consolidating Highways Act, the ownership of highways maintainable at the public expense rests with the local unitary or county council or, if a trunk road, with the Department for Transport.
Most roads are thus subject to a public right of way, are publicly owned and publicly maintained. They are "highways maintainable at public expense". Roads that are not maintainable at public expense are referred to as private or ‘Unadopted’ roads. These can still be subject to a public right of way, but the public generally do not contribute to their upkeep.
Responsibility for the cost of maintaining a private road rests with the frontagers (the owners of properties which front onto such roads).
If unadopted roads are brought up to the right standards, they can be adopted and then maintained at public expense. Similarly, if, because of the poor state of an un-adopted road, it becomes dangerous, the council can require frontagers to undertake necessary repairs. If they fail to act, the council can do the repairs itself and recover the costs from the frontagers.
There are two main types of private or un-adopted road: those on new developments such as housing estates and those which, usually by historic accident, have existed for a long time, often since the nineteenth century. Confusingly, mainly between 1920 and 1960, some roads were built in council estates, but were never adopted, and are maintained by the housing revenue accounts of councils (ie by tenant rents) and not by the council as the highways authority.
Some residents of un-adopted roads think it is unfair that they have to pay for the maintenance of their road, when everyone is allowed to use it as a highway. I think it’s a case of swings and roundabouts. The price of houses in un-adopted roads are typically lower than similar houses on maintained roads, reflecting their legal status. Is it reasonable to pay less, but get the same? Probably not.
And, of course, it’s not just the highway and pavement maintenance that can become an issue. While there is a power, there is no duty on a council to provide street lighting. And, even though highways’ criminal offences might be committed on un-adopted roads, all sorts of different legal issues arise when it comes to bad parking, obstruction or trespass.
The biggest problem comes when some home-owners and frontagers want to spend money to get the highway up to an adoptable standard but others don’t. In those circumstances, neighbour disputes can run for years, without any possibility of finding a cheap or happy solution.
So, if you are contemplating purchasing or renting a home in an un-adopted road, you might want to take especial care in considering the potential liabilities or issues that might arise.