Highways Heroes

One of the most talked about subjects in the news, on social media and in the pub is the state of the Britain’s roads. And no wonder, as they have been slowly deteriorating for years to the point now where is it not uncommon to see vehicles swerving all over the road to avoid damage and injury! These days, driving with ‘due care and attention’ means looking 5m ahead of the vehicle for the next crater, rather than anticipating road hazards in the distance. Claims for personal injury and vehicle damage are vigorously defended by the very organisations responsible for road maintenance. We have reached the situation where the Asphalt Industry Alliance, the trade body for road maintenance contractors, estimate that it will now cost in excess of £18b to bring the roads into an acceptable condition and that the average cycle time for a road to be fully resurfaced is 97 years! This situation has to stop.

 

Members of the public use various avenues to express their anger at the situation, such as political lobbying; social media venting and online defect reporting, but the evidence is that all these methods do not have the required effect of getting potholes filled and worn out roads resurfaced. Although the Highways Authorities claim that online reporting is the easiest method, they mean easiest for them. This is why such reports are often ignored, or if acknowledged, no action is taken within a reasonable period. You often hear the expression ‘cash strapped Councils’ and no doubt that is the case, however, their inability to allocate the appropriate funds to road maintenance is not a valid argument for letting them deteriorate into a dangerous condition. It’s no wonder the public have completely lost confidence in the ability of those responsible for maintaining the roads.

 

The good news is that there is a simple and effective method to have the roads repaired!

 

The very existence of the Highways Authorities is in order to maintain the roads as directed by a law called The Highways Act 1980. This is the most recent iteration of road maintenance legislation that goes back to 1555 when Queen Mary was on the throne. It’s ironic that today’s roads have almost reverted back to the condition in Elizabethan England when this law was first introduced in order to deal with it! There have been many updates to this law over the centuries and what we have today is based on a long history of keeping the roads in order.

 

The Highways Act simply states that the Highways Authority must “maintain the highways at public expense”. That expression has been determined in precedent case law to mean that a lack of funds or resources is no defence for poor maintenance, because the roads should be repaired and the public charged for that work.

 

In previous years, a tax called the Road Fund License served that specific purpose, but in 1937 that was phased out in favour of Vehicle Excise Duty and the old paper tax discs that were part of that arrangement where abolished in 2014. VED tax money now goes into a Central Government fund that is expended on whatever the Government sees fit. Also, tax income is derived from Fuel Duty and the VAT on it, which only motorists need to pay. Next year, electric vehicle drivers will also have to pay their way, which is fair enough, so long as the money is used for its stated purpose of highways upkeep. In addition, every homeowner in the country pays Council Tax, approximately 10% of which is earmarked for road maintenance. This means that non-motoring members of the public, such as pedestrians and cyclists, also contribute towards road repairs. These various income streams raised over £35b in 2025, so it’s obvious that a lack of funds is not the issue. Whilst it may not be possible to determine exactly what this income is being used for, it is readily evident that it is not being spent on road upkeep! This is why the public feel that they are paying dearly for a service that they are not receiving. If the estimate that it will currently cost just over £18b to bring Britain’s roads into a proper state of repair is accurate, a simple calculation shows that we could have a decent and safe standard of roads within 6 months or so, if the current tax take were expended on its intended purpose.

 

So, based on the above, what can be done to take effective action to get tarmac on the roads?

 

The Highways Act 1980 has a set of rules called Section 56 (This can be searched on Google), which allow members of the public to complain in an official way about the condition of the roads by servicing a ‘Notice’. This is not a random online report or a letter, but a legally binding document that must be handled in a specific way by the Highways Authority. It sounds complicated, but is actually very simple and a template is available to assist with this. There is no need to describe the defects in the initial Notice, presumably because the law assumes that the Highways Authority employ competent Highways Engineers capable of identifying the Notified defects. Nor is it necessary to take photographs at this stage. However, it is essential that the correct Highways Authority is identified by reference to a County Council or London Borough boundary map, so that the Notice can be addressed to the Chief Executive of that Highways Authority. It is wise to send any Notices by Royal Mail Signed For delivery to prevent the Council saying they never received it. It is necessary to name the road in question and the area of it that needs repair. Identifying the stretch of road by describing it between such and such a junction and another junction works well, or GPS Coordinates can be used that can be found using Google Maps. Do not report roads that might be privately owned or any minor defects, as that could just cause issues. Also, things like fallen trees and snow or ice could be continuous, so only notify obvious defects such as potholes, eroded surfaces, missing carriageway edges, displaced kerbs, dropped manholes and gullies, missing or worn road markings, etc. There should be plenty of scope with just those items! A word of caution: The Highways Authority have no obligation under the Act to ‘improve’ the road, but only to maintain it, so don’t view a bumpy passing place in a country lane as a defect because it was never tarmacked as part of the carriageway.

 

It is possible to send a separate Notice for each road to be reported and group them into one envelope to save postage costs. Alternatively, a Schedule of Defects can be created, which may help manage ongoing issues as the matter develops.

 

Many Highways Authorities seem to have little or no understanding of this legislation, which is surprising as it defines the purpose of their existence. This means that they sometimes ignore the Notices that are served, even though they have just one calendar month in which to respond. What happens then?

 

In the Event a Notice is Ignored:

 

Section 56(2) provides that a Complainant can apply to the Crown Court for an Order that the roads be put into repair within a reasonable period. This application is free and the address of the Court covering the relevant area of roads can be found online. It is astonishing that such a comparatively trivial matter as road repairs should end up in a Court that normally deals with major indictable offences such as rape and murder and even the Judge may be surprised, but that’s what the Act says. Having said that, the Judge is likely to be sympathetic to your application as they are probably a motorist too.

 

The Crown Court application requires a bit more detail as outlined in the template below in that you need to provide the following information and this is why a Schedule of Defects for multiple Notices can be helpful at the outset:

 

(a)       The situation of the way or bridge to which the application relates: This simply means the name of the road and the area of it that is out of repair. The description between the relevant junctions or the GPS coordinates will suffice here.

 (b)      The name of the respondent: Whichever Council was notified.

(c)       The part of the way or bridge which is alleged to be out of repair: This might be the carriageway or the footway or both.

(d)       The nature of the alleged disrepair: Describe the type of defects such as potholes, eroded surfaces, missing carriageway edges, displaced kerbs, dropped manholes and gullies, missing or worn road markings, etc.

 

The Crown Court will normally respond fairly quickly and provide a hearing date. They may ask that you submit any evidence such as geotagged photographs by a certain date prior to the hearing. It is good to also include any correspondence received from the Highways Authority, such as their Counter-Notice. It will be necessary to attend the Court on the hearing date and to contact the Court administration team the day prior to discover the hearing time.

 

In Court it is wise to dress and act respectfully because the Judge is in a very powerful position to assist. He or she should be addressed as “Your Honour” and it is normal to stand when doing so. Wait to be addressed by the Judge before speaking. The burden of defence with fall on the Highways Authority where the Judge will ask if the Notices were received, were the Counter-Notices issued within the correct timeframe and whether the roads are liable to be maintained by this particular Respondent. These are simple matters of fact. The Judge’s final question will be whether the roads are out of repair. The Highways Authority may concede that they are not in repair, in which case the Judge will issue an order to have them repaired within a reasonable period. This was recently suggested by one Highways Authority to be 20 working days and the Judge concurred. This period was proposed for fairly major resurfacing works, so minor pothole repairs should be easily completed within this timescale.

 

Alternatively, the Highways Authority could contest that the roads are out of repair on the basis of their own self-imposed standards. However, case history clearly defines the meaning of ‘out of repair’ in the following ways (These are direct quotes from the relevant cases – See the Legal Notes):

 

1. The surface is defective or disturbed, creating a hazard or making it impassable, or has become unsound or impaired by neglect or use.

2. The road must be safe to pass at all seasons, with lack of resources being no defense.

3. The road must be reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition.

4. The Highways Authority must keep the road as dedicated to the public in such a state as to be safe and fit for ordinary traffic.

5. The public is entitled to enjoy the full width of the highway.

6. The level of repair changes as the ordinary traffic changes.

7. The level of repair must follow the character of the traffic using a road.

8. The way ought to be put into such a state of repair that persons might walk along dry shod.

9. The Highways Authority have an obligation to maintain highways in a structural condition which makes them free from foreseeable danger

 

The above precedent law provides the Court with a basis for determining if the roads are out of repair. It may be possible to highlight the hazards caused by defective surfaces and potholes to car and van drivers who are forced to swerve suddenly to avoid damage or danger. It is even more serious for cyclists or motorcyclists who have only two wheels in contact with the road. These arguments will weigh heavily in the Court’s decision.

 

All being well, the Court will agree that the roads are out of repair and issue an Order for the works to be carried out within a reasonable time.

 

Should such an Order be issued, an application for costs involved in bringing the case should be made. It is possible to charge for each e-mail and letter sent and for the time in gathering evidence, such as taking photographs. The time attending Court is also included.