Highways Act 1980

36 Highways maintainable at public expense. E+W

(1) All such highways as immediately before the commencment of this Act were highways maintainable at the public expense for the purposes of the M1 Highways Act 1959 continue to be so maintainable (subject to this section and to any order of a magistrates’ court under section 47 below) for the purposes of this Act.

(2) Without prejudice to any other enactment (whether contained in this Act or not) whereby a highway may become for the purposes of this Act a highway maintainable at the public expense, and subject to this section and section 232(7) below, and to any order of a magistrates’ court under section 47 below, the following highways (not falling within subsection (1) above) shall for the purposes of this Act be highways maintainable at the public expense—

(a) a highway constructed by a highway authority, otherwise than on behalf of some other person who is not a highway authority;

(b) a highway constructed by a council within their own area under [F1 Part II of the Housing Act 1985], other than one in respect of which the local highway authority are satisfied that it has not been properly constructed, and a highway constructed by a council outside their own area under [F1 the said Part II], being, in the latter case, a highway the liability to maintain which is, by virtue of [F1 the said Part II], vested in the council who are the local highway authority for the area in which the highway is situated;

(c) a highway that is a trunk road or a special road; F2 . . .

(d) a highway, being a footpath [F3 , bridleway or restricted byway], created in consequence of a public path creation order or a public path diversion order or in consequence of an order made by the Minister of Transport or the Secretary of State under [F4 section 247 of the Town and Country Planning Act 1990 or by a competent authority under section 257 of that Act], or dedicated in pursuance of a public path creation agreement.

F5 [(e) a highway, being a footpath [F3 , bridleway or restricted byway], created in consequence of a rail crossing diversion order, or of an order made under section 14 or 16 of the Harbours Act 1964, or of an order made under section 1 or 3 of the Transport and Works Act 1992.]

[F6 (f) a highway, being a footpath, a bridleway, a restricted byway or a way over which the public have a right of way for vehicular and all other kinds of traffic, created in consequence of a special diversion order or an SSSI diversion order.]

(3) Paragraph (c) of subsection (2) above is not to be construed as referring to a part of a trunk road or special road consisting of a bridge or other part which a person is liable to maintain under a charter or special enactment, or by reason of tenure, enclosure or prescription.

F7 [(3A) Paragraph (e) of subsection (2) above shall not apply to a footpath [F3 , bridleway or restricted byway], or to any part of a footpath [F3 , bridleway or restricted byway], which by virtue of an order of a kind referred to in that subsection is maintainable otherwise than at the public expense.]

(4) Subject to subsection (5) below, where there occurs any event on the occurrence of which, under any rule of law relating to the duty of maintaining a highway by reason of tenure, enclosure or prescription, a highway would, but for the enactment which abrogated the former rule of law under which a duty of maintaining highways fell on the inhabitants at large (section 38(1) of the M2 Highways Act 1959) or any other enactment, become, or cease to be, maintainable by the inhabitants at large of any area, the highway shall become, or cease to be, a highway which for the purposes of this Act is a highway maintainable at the public expense.

(5) A highway shall not by virtue of subsection (4) above become a highway which for the purposes of this Act is a highway maintainable at the public expense unless either—

(a) it was a highway before 31st August 1835; or

(b) it became a highway after that date and has at some time been maintainable by the inhabitants at large of any area or a highway maintainable at the public expense;

and a highway shall not by virtue of that subsection cease to be a highway maintainable at the public expense if it is a highway which under any rule of law would become a highway maintainable by reason of enclosure but is prevented from becoming such a highway by section 51 below.

(6) The council of every county [F8 , metropolitan district] and London borough and the Common Council shall cause to be made, and shall keep corrected up to date, a list of the streets within their area which are highways maintainable at the public expense.

(7) Every list made under subsection (6) above shall be kept deposited at the offices of the council by whom it was made and may be inspected by any person free of charge at all reasonable hours and in the case of a list made by the council of a county [F9 in England], the county council shall supply to the council of each district in the county an up to date list of the streets within the area of the district that are highways maintainable at the public expense, and the list so supplied shall be kept deposited at the office of the district council and may be inspected by any person free of charge at all reasonable hours.

Textual Amendments

F1 Words substituted by Housing (Consequential Provisions) Act 1985 (c. 71, SIF 61), s. 4, Sch. 2 para. 47

F2 Word in s. 36(2) at the end of para. (c) repealed (31.1.1993) by Transport and Works Act 1992 (c. 42), ss. 64(2), 68(1), Sch. 4 Pt. I; S.I. 1992/3144, art. 3, Sch.

F3 Words in s. 36(2)(3A) substituted (2.5.2006 for E. and 11.5.2006 for W.) by The Restricted Byways (Application and Consequential Amendment of Provisions) Regulations 2006 (S.I. 2006/1177), regs. 1(2)(4), 2, Sch. Pt. 1; S.I. 2006/1172, art. 2(a)-(d) (with art. 3); S.I. 2006/1279, art. 2(a)-(d) (with art. 3)

F4 Words substituted by Planning (Consequential Provisions) Act 1990 (c. 11, SIF 123:1, 2), s. 4, Sch. 2 para. 45(3)

F5 S. 36(2)(e) added (31.1.1993) by Transport and Works Act 1992 (c. 42), s. 64(3); S. I. 1992/3144, art. 3, Sch.

F6 S. 36(2)(f) inserted (12.2.2003 for E. for certain purposes and 21.5.2007 in so far as not already in force, 15.7.2005 for W. for certain purposes and otherwise prosp.) by 2000 c. 37, ss. 57, 103(3), Sch. 6 Pt. I para. 5; S.I. 2003/272, art. 2(a)(d); S.I. 2005/1314, art. 3(a); S.I. 2007/1493, art. 2

F7 S. 36(3A) inserted (31.1.1993) by Transport and Works Act 1992 (c. 42), s. 64(4); S.I. 1992/3144, art. 3, Sch.

F8 Words inserted by Local Government Act 1985 (c. 51, SIF 81:1), s. 8, Sch. 4 para. 7

F9 Words in s. 36(7) inserted (1.4.1996) by 1994 c. 19, s. 22(1), Sch. 7 Pt. I para. 4 (with s. 54(7), Sch. 17 paras. 22(1), 23(2)); S.I. 1996/396, art. 3, Sch. 1.

Modifications etc. (not altering text)

C1 S. 36 applied (2.5.2006 for E. and 11.5.2006 for W.) by The Restricted Byways (Application and Consequential Amendment of Provisions) Regulations 2006 (S.I. 2006/1177), arts. 1(2)(4), 2, Sch. Pt. I; S.I. 2006/1172, art. 2; S.I. 2006/1279, art. 2

C2 S. 36(2) modified (1.4.2018) by The Sub-national Transport Body (Transport for the North) Regulations 2018 (S.I. 2018/103), regs. 1(2), 16

Marginal Citations

M1 1959 c. 25.

M2 1959 c. 25.