Guide to Highway Law for Architects, Engineers, Surveyors and Contractors

150 Pages·2002·0.4 MB·English

by  Mr R A O'Hara

Guide to Highway Law for Architects,
Engineers, Surveyors and Contractors

Guide to Highway Law for Architects,
Engineers, Surveyors and Contractors
Robert A.O’Hara
Senior Lecturer in Construction Law
School of Financial Services and Law
Sheffield City Polytechnic
An Imprint of Chapman & Hall
London • New York (cid:127) Tokyo (cid:127) Melbourne (cid:127) Madras
Published by E & FN Spon, an imprint of Chapman & Hall,
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Chapman & Hall, 2–6 Boundary Row, London SE1 8HN, UK
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First edition 1991
This edition published in the Taylor & Francis e-Library, 2003.
© 1991 Robert A.O’Hara
ISBN 0-203-47398-1 Master e-book ISBN
ISBN 0-203-78222-4 (Adobe eReader Format)
ISBN 0 419 17330 7 0 442 31442 6 (USA)
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Contents
Glossary viii
Section 1 Introduction 1
Meaning of Highway 2
Types of Highway at Common Law 3
Creation of Highways 3
(i) By Dedication 4
(ii) Other Aspects 5
(iii) By Statute 6
Highways Legislation 6
The Highways Act 1980 7
Administration of the Act 7
Other Acts of Parliament 8
Highway Authorities 9
Classification of Highways 9
Maintenance and Improvement of Highways 10
Modern Maintenance 11
(i) Maintainable at Public Expense 11
(ii) Private Maintenance 12
Section 2 Rights of Adjacent Owners 14
Miscellaneous Rights 14
The Vesting of Sewers 15
Obligations of Adjacent Owners and or Occupiers 16
Remedies for Public Nuisance 17
Rights of the Public 17
Limitations of the Rights of the Public 18
Access 19
Carriage Crossings 21
Stopping up a Means of Access 22
Stopping up, Diversion and Extinguishing Highways 22
(i) The 1980 Act Procedure 23
(ii) The 1971 Act Procedure 25
Protection of Highways 27
(i) Criminal Offence at Common Law 27
(ii) Common Law Nuisance 29
(iii) Criminal Offence under Statute 31
(iv) Construction Operations near the Highway 32
v
Section 3 Building Operations on or near the Highway 33
Activities Related to Construction Work 33
(i) Work which causes Actual Damage to the Highway 33
(ii) Prohibition of Soiling the Highway 33
(iii) Power to Remove Structures and Projections 34
(iv) Safety Precautions to Prevent Damage to the Street 35
(v) Building close by, under or over a Highway 35
(vi) Facilitating Building Operations 36
Builders’ Skips 37
(i) Defences 38
(ii) Removal of Builders’ Skips 39
(iii) Approved Owners 40
Hoardings 40
Scaffolding 41
‘Lines’ 42
(i) Building Lines 43
(ii) Improvement Lines 43
Section 4 Making up New Streets 45
‘New Streets’ 46
Town and Country Planning 49
Enforcement 49
Private Street Works Code 50
Advance Payments Code 51
(i) Exemptions to the Code 51
(ii) Amount of Payment 53
(iii) Power to Insist on Making up Road 53
Agreement under S38 53
Private Roads 54
Adoption of Streets 55
(i) At the Discretion of the Authority 55
(ii) ‘Democratic’ Action 55
(iii) Agreement under S38 56
Serving of Notice 56
Sections 5 Civil Liability 57
The Building Owner 57
The Contractor and the Sub-Contractor 59
The Construction Professional 61
The Local Highway Authority 62
Section 6 Short Case Studies 65
vi
Appendices 123
1 Problems and Questions 123
2 Table of Cases 127
3 Table of Statutes 131
Bibliography 135
Index 137
vii
Glossary
The following abbreviation of law reports are used in the text.
A.C. Appeal Cases
ALL E.R. ALL England Reports
B.L.R. Building Law Reports
Burr Burrows Reports, Kings Bench
Ch. Chancery Division
Crim. L.R. Criminal Law Reports
E & B Ellis and Blackburn Reports, Queens Bench
E.G. Estate Gazette
I.R. Irish Reports
J.P. (L.R.) Justice of the Peace Law Reports
L.G.R. Local Government Reports
L.T. Law Times
P. & C.R. Planning and Compensation
Q.B.D. Queens Bench Division
R.T.R. Road Traffic Reports
Term Term Report
T.L.R. Times Law Report
Vent Ventris Report
W.L.R. Weekly Law Report
W.R. Weekly Report
viii
Section 1
Introduction
At a time when so much construction work is being carried out on
or near to highways, a contractor ignores at his peril the law of
highways and the influence it has, or should have, on his working
methods and practices; should he do so not only might he incur
claims for damages from members of the general public whose
rights he might infringe in his ignorance, but he may also face
criminal charges laid by the local highway authority or police
which may result in fines being imposed, and or the serving of
injunctions (this may be either civil or criminal).
Some knowledge, understanding or awareness of the law relating
to highways is essential to anyone involved in the construction
process, including the architect, engineer or surveyor advising a
client as to what is possible, and the contractor actually carrying
out the contract works; this can be illustrated by say the influence
an improvement line might have on a building design, or where
access eg a carriage crossing to a property might be positioned or
whether to attempt to obtain a section 38 agreement or use the
advance payments code when building new roads; the contractor
also would be influenced in many ways by such things as
restrictions on rubbish skips parked on the highways, lorries
leaving his site spreading mud on the road and heavy vehicles
damaging the highway eg breaking kerb stones and paving slabs.
These examples are simply elementary illustrations to help
emphasise the importance of some knowledge of the law of
highways. These instances relate to practical examples involving
the actual building work itself but they are not the only kind of
liability that arises from working on or near the highway.
The law of highways imposes on land owners adjacent to
highways a strict liability regarding injuries to members of the
general public resulting from work carried out on their land even if
the work is carried out by independent contractors, Tarry v Ashton
(1876), (1) this also helps to highlight the role of the professional
1