What is a “highway”?

A highway is a way over land upon which there is a permanent right of way for any member of the public to pass and repass along a defined route. The term “highway” may relate either to the right of way itself as a legal entity (for instance when considering evidence concerning its history of use or its notional width) or to the physical feature along which that right of way is exercised (which for the purposes of highway maintenance is said to comprise the surface or “ top two spits ” of the land over which the highway runs). Highway rights are enjoyed by the public “ as of right “, meaning their use is neither by force ( nec vi ), nor clandestine ( nec clam ), nor dependent upon the permission of the owner of the underlying subsoil ( nec precario ).

Who owns the highway?

With a few notable exceptions (for example, roads created by inclosure or by new developments), there is a rebuttable presumption that adjoining owners own the subsoil of the highway up to the middle point of the road ( usque ad medium filum viae ). The owner of the underlying subsoil may enjoy his or her land subject to the public right of way and retains all existing rights over the land which are not inconsistent with the public right of way.

What about “highway authorities”?

The interest of the highway authority will be limited to the surface of the highway, and to as much of the subsoil beneath and air above the highway as is required to exercise its statutory powers and duties. The public may have a right to carry out other activities, in addition to the right to pass and repass, provided these are lawful and do not obstruct the highway.

Key kegislation

Although it developed as common law, much of the law relating to highways and the traffic that travels along them is now set out in statute.

The Highways Act 1980 consolidates earlier highways legislation and is the key legislation dealing with the creation, diversion, obstruction and extinguishment of the public right of way itself, and the creation, funding and maintenance of the physical features of the way itself and associated apparatus

Traffic and works on the highway are regulated, managed and co-ordinated pursuant to a variety of legislation including the Road Traffic Regulation Act 1984, the New Roads and Street Works Act 1991 and the Traffic Management Act 2004.

Use of the highway by individual members of the public is regulated by primary and secondary legislation such as the Road Traffic Act 1988 and the current edition of the Highway Code (England, Wales and Scotland) or the Highway Code (Northern Ireland)