Highways Act 1980 and Highway Authorities in England

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Highways Act 1980 and Highway Authorities in England

Post by Steven »

I was looking throught the Highways Act 1980 for something, and I noticed paragraph 2 of the current version, which deals with England outside Greater London, and the bodies that can be Highways Authorities on non-Trunk roads.
Highways Act 1980 wrote: (2) Outside Greater London the council of a county or metropolitan district are the highway authority for all highways in the county or, as the case may be, the district, whether or not maintainable at the public expense, which are not highways for which under subsection (1) or (1A) above the Minister or a strategic highways company is the highway authority.

(2A) Transport for London is the highway authority for all GLA roads.

(3) The council of a London borough or the Common Council are the highway authority for all highways in the borough or, as the case may be, in the City, whether or not maintainable at the public expense, which are not for the time being GLA roads or highways for which under subsection (1) or (1A) above the Minister or a strategic highways company is the highway authority.

So, who can be a Highway Authority outside Greater London according to the Act? Clearly it's:
* The council of a [administrative] county
* A metropolitan district.

And that's it.

So why is this at all interesting? Well, so-called "Unitary Authorities", that's where. As discussed before, those bodies colloquially known as "Unitary Authorities" come in three flavours:

1. An administrative county with one county council and no district councils (such as Shropshire)
2. An administrative county with no county council and one district council (such as Stoke-on-Trent)
3. An administrative county with no county council and several district councils (such as the Berkshire authorities).

They have to be this way because of the extremely silly way the 1972 Local Government Act is written, which basically says that a county council has to be responsible for its entire area, hence places like Derby and Nottingham are actually separate administrative counties from Derbyshire and Nottinghamshire. For example, the Bournemouth, Dorset and Poole (Structural Changes) Order 2018 states:
Bournemouth, Dorset and Poole (Structural Changes) Order 2018 wrote:Single tier local government in Bournemouth, Christchurch and Poole
3.—(1) A new non-metropolitan county and a new non-metropolitan district, each to be known as Bournemouth, Christchurch and Poole, are constituted comprising (in each case) the areas of the districts of Bournemouth, Christchurch and Poole.

(2) In relation to the county of Bournemouth, Christchurch and Poole, section 2(1) of the 1972 Act (which provides that every county shall have a council) does not apply.

(3) A new district council, to be known as Bournemouth, Christchurch and Poole Council, is established as the sole principal authority for the non-metropolitan district of Bournemouth, Christchurch and Poole.
Clearly, BCP Council is a district council, and there is no council of a [administrative] county within the county of Bournemouth, Christchurch and Poole. But looking at the text of the Highways Act, it's clear that non-metropolitan district authorities cannot legally be a Highway Authority. There is no council of a county for BCP, and hence no legal Highway Authority...
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Re: Highways Act 1980 and Highway Authorities in England

Post by c2R »

That'd be an interesting one for someone to use in legal challenges. Does it potentially mean therefore that such a council could say that it isn't liable for street repair or for consequential damage...

I wonder if there is anything in the text of the legislation that sets up the unitary authorities to state that it has the same functioning in all other legislation as a non-metropolitan county council area, that gets round this, and that the consequential amendments to the Highways Act just aren't included through error?
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Re: Highways Act 1980 and Highway Authorities in England

Post by Steven »

c2R wrote: Thu Nov 14, 2019 13:21 That'd be an interesting one for someone to use in legal challenges. Does it potentially mean therefore that such a council could say that it isn't liable for street repair or for consequential damage...
Potentially. It's an awfully huge loophole if it is the case.
I wonder if there is anything in the text of the legislation that sets up the unitary authorities to state that it has the same functioning in all other legislation as a non-metropolitan county council area, that gets round this, and that the consequential amendments to the Highways Act just aren't included through error?
If there is, I'd be interested to see it.

Interestingly, Dorset Council (which I'd have assumed was a county council, and hence could be a Highways Authority) is actually a district council, so can't be!
Bournemouth, Dorset and Poole (Structural Changes) Order 2018, section 7 wrote: (2) In relation to Dorset section 2(1) of the 1972 Act (which provides that every county shall have a council) does not apply.

(3) A new district council, to be known as Dorset Council, is established as the sole principal authority for the non-metropolitan district of Dorset.
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Re: Highways Act 1980 and Highway Authorities in England

Post by A303Chris »

Steven, are you using a hard copy as we always use the online copy which was updated only last week.

The latest version of the Act is here and after Part Section 1 it lists all the textual amendments which are now included within other acts. As you will see (2) now refers to county and districts.

The whole act has been amended by so many other acts, it is about time it was totally rewritten. I know unitary's are covered as I used to work for one. Something I do a lot of now, stopping up and diversions are now cover by several acts. It is a real minefield and the issue I have come across is so many officers in Highway Departments still use the original hard copy, which basically is so out of date, it should be binned.

Unfortunately I specialised in Highway Law for a time and now at my company I am the go to person. It is very complicated to work through now.
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Re: Highways Act 1980 and Highway Authorities in England

Post by Steven »

A303Chris wrote: Thu Nov 14, 2019 13:40 Steven, are you using a hard copy as we always use the online copy which was updated only last week.
Yes, that text quoted above is from the current version from legislation.gov.uk, copied today.
The latest version of the Act is here and after Part Section 1 it lists all the textual amendments which are now included within other acts. As you will see (2) now refers to county and districts.
It does, but using the exact wording as copied above, where it specifies council of a county or metropolitan district are the highway authority for all highways in the county or, as the case may be, the district, and nowhere does it state "and the council of a non-metropolitan district where there is no council of a county" or similar wording.
The whole act has been amended by so many other acts, it is about time it was totally rewritten. I know unitary's are covered as I used to work for one. Something I do a lot of now, stopping up and diversions are now cover by several acts. It is a real minefield and the issue I have come across is so many officers in Highway Departments still use the original hard copy, which basically is so out of date, it should be binned.

Unfortunately I specialised in Highway Law for a time and now at my company I am the go to person. It is very complicated to work through now.
I think everyone has potentially assumed that the three flavours of unitary are covered, as they all take on the functions of both county and district level authorities - but according to the Highways Act itself - they're not. The only possibility is that there's some other catch-all legislation I've missed, but you'd expect the Highways Act itself to have been updated accordingly.
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Re: Highways Act 1980 and Highway Authorities in England

Post by A303Chris »

Steven wrote: Thu Nov 14, 2019 13:51 I think everyone has potentially assumed that the three flavours of unitary are covered, as they all take on the functions of both county and district level authorities - but according to the Highways Act itself - they're not. The only possibility is that there's some other catch-all legislation I've missed, but you'd expect the Highways Act itself to have been updated accordingly.
And that is the nail on the head , is that it is in some other catch all legislation, think it could be the Local Government Act. The 1980's Act replaced the 1959 Highways Act, after only 21 years. Given we are approaching 40 years of the new act, it is about time it is rewritten given the huge amount of changes
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Re: Highways Act 1980 and Highway Authorities in England

Post by Steven »

Just looking through the Berkshire changes order and:
The Berkshire (Structural Change) Order 1996 wrote:
Structural change
3. The County Council shall be wound up and dissolved and the functions of that council in relation to each Berkshire district shall, subject to the following provisions of this Part and to any other relevant provision, be transferred to the council of that district.
Which is all well and good (and probably where everyone is making the assumption from), but doesn't primary legislation (i.e. the Highways Act) override secondary legislation like this? All of the creations of "unitaries" appear to have been done purely through Structural Change Orders, with no associated primary legislation - otherwise the stupid 1972 LGA provisions wouldn't be a problem.

What it boils down to is that the 1986 changes were correctly inserted into the Highways Act, but none of the succeeding changes have been.
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Re: Highways Act 1980 and Highway Authorities in England

Post by someone »

The Local Government Changes for England Regulations 1994 regulation 5:
(1) In this regulation, “provision” means any provision in any enactment other than the order, and includes a provision made in any direction or scheme made under any enactment, whenever

(6) Any reference in a provision to a county council shall, so far as is required for continuing the effect of the provision, be construed as including a district council to which county functions have been transferred pursuant to a structural change.
http://www.legislation.gov.uk/uksi/1994 ... ion/5/made
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Re: Highways Act 1980 and Highway Authorities in England

Post by trickstat »

Steven wrote: Thu Nov 14, 2019 13:15 So why is this at all interesting? Well, so-called "Unitary Authorities", that's where. As discussed before, those bodies colloquially known as "Unitary Authorities" come in three flavours:

1. An administrative county with one county council and no district councils (such as Shropshire)
2. An administrative county with no county council and one district council (such as Stoke-on-Trent)
3. An administrative county with no county council and several district councils (such as the Berkshire authorities).
Aren't there actually four?:

1. An administrative county with one county council and no district councils (such as Cornwall)
2. An administrative county with one county council and a separate district council (such as Shropshire*)
3. An administrative county with no county council and one district council (such as Stoke-on-Trent)
4. An administrative county with no county council and several district councils (such as the Berkshire authorities).

*Telford & Wrekin. Also Wiltshire (Swindon) and Dorset (the aforementioned 'BCP').
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Re: Highways Act 1980 and Highway Authorities in England

Post by Steven »

trickstat wrote: Thu Nov 14, 2019 15:56
Steven wrote: Thu Nov 14, 2019 13:15 So why is this at all interesting? Well, so-called "Unitary Authorities", that's where. As discussed before, those bodies colloquially known as "Unitary Authorities" come in three flavours:

1. An administrative county with one county council and no district councils (such as Shropshire)
2. An administrative county with no county council and one district council (such as Stoke-on-Trent)
3. An administrative county with no county council and several district councils (such as the Berkshire authorities).
Aren't there actually four?:

1. An administrative county with one county council and no district councils (such as Cornwall)
2. An administrative county with one county council and a separate district council (such as Shropshire*)
3. An administrative county with no county council and one district council (such as Stoke-on-Trent)
4. An administrative county with no county council and several district councils (such as the Berkshire authorities).

*Telford & Wrekin. Also Wiltshire (Swindon) and Dorset (the aforementioned 'BCP').
No. Telford and Wrekin is an administrative county, so fits in example 2.
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Re: Highways Act 1980 and Highway Authorities in England

Post by RichardA35 »

My simplistic reading (NAL :( ) is that the provisions of S4 may apply in these circumstances (my colours & strikethrough) as, IMV, the situation of Dorset Council could be said to fulfil these criteria although I suspect it was written for cases of geographical aberrations or local agreements where a highway was more appropriately maintained by a neighbouring authority:

2. Outside Greater London the council of a county [F5or metropolitan district] are the highway authority for all highways in the county [F5or, as the case may be, the district], whether or not maintainable at the public expense, which are not highways for which under subsection (1)[F6or (1A) ] above the Minister[F7or a strategic highways company] is the highway authority.

4. Subsection (2) above is subject, as respects any highway outside Greater London for which the Minister[F13or a strategic highways company] is not the highway authority under subsection (1)[F12or (1A)] above, to any provision of this Act, or of any order made under this or any other Act, by virtue of which a council other than the council of the county [F15or, as the case may be, the metropolitan district] in which the highway is situated are the highway authority therefor.

Thoughts?
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Re: Highways Act 1980 and Highway Authorities in England

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someone wrote: Thu Nov 14, 2019 15:22 The Local Government Changes for England Regulations 1994 regulation 5:
(1) In this regulation, “provision” means any provision in any enactment other than the order, and includes a provision made in any direction or scheme made under any enactment, whenever

(6) Any reference in a provision to a county council shall, so far as is required for continuing the effect of the provision, be construed as including a district council to which county functions have been transferred pursuant to a structural change.
http://www.legislation.gov.uk/uksi/1994 ... ion/5/made
That one must be the answer - but again it's really unusual having secondary legislation overriding primary legislation. Thanks for digging that one out!
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Re: Highways Act 1980 and Highway Authorities in England

Post by AndyB »

That would be interesting to check. All other things being equal, the limits of secondary legislation are set by the primary legislation enabling it - I will have a nosey when time allows to see what the parent legislation says the regulations can do.
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Re: Highways Act 1980 and Highway Authorities in England

Post by someone »

The Local Government Changes for England Regulations 1994 does not override primary legislation as the Highways Act 1980 does not offer a legal definition of "county council" to be overridden. And nor should it have, precisely because of situations like that one. Such a change to local government structure could otherwise lead to requiring hundreds of acts and orders to be amended.

But it was the Local Government Act 1992 which allowed the Secretary of State to implement recommended changes to the structure of local government by order. It is therefore both appropriate and necessary that an order will also state how those changes should be interpreted in law.
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Re: Highways Act 1980 and Highway Authorities in England

Post by AndyB »

I've had a nosey, and basically section 19 of the Local Government Act 1992 (section repealed in 2009) let the Government make regulations for the transfer of functions from predecessor authorities. A lawyer might argue that a function could not be transferred to a successor authority by secondary legislation (ie an Order or Regulations) if doing so would conflict with existing primary legislation, but that's presumably the legislation on which they are relying.
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Re: Highways Act 1980 and Highway Authorities in England

Post by Berk »

I do find it difficult to understand why governments like ours seem to rely on repealed legislation for institutions or citizens rights to work.

For example, when I examine passport applications, I have to use today’s legislation (the British Nationality Act 1981). In many cases now, that’s all you need.

But for customers born before 1983 (and sometimes those born later), you have to refer back to previous legislation (the BNA of 1948, and the Immigration Act as it originally read in 1971).

The clauses no longer exist, but the applicant’s status still derives from them.
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Re: Highways Act 1980 and Highway Authorities in England

Post by someone »

AndyB wrote: Sun Nov 17, 2019 22:46I've had a nosey, and basically section 19 of the Local Government Act 1992 (section repealed in 2009) let the Government make regulations for the transfer of functions from predecessor authorities. A lawyer might argue that a function could not be transferred to a successor authority by secondary legislation (ie an Order or Regulations) if doing so would conflict with existing primary legislation, but that's presumably the legislation on which they are relying.
Which piece of primary legislation would the lawyers be saying conflicted with the 1992 act? Because that is where any conflict would exist. Not in the 1994 regulations, as these are clearly legislated for, but in any contradictory provisions created by assent of the act.

Of course, it is for the courts to reconcile any conflict, and in common law the implied repeal doctrine would mean the most recent statute would prevail.

And if anything, the regulations only make explicit how a court would interpret the Highways Act 1980 anyway, they do not even define a "county council".

To say that a council which has the powers of a county council, and is the only council in a county, is not the "county council" under the Act, would leave that county without any highway authority. Internal consistency of the act "as is required for continuing the effect of the provision" would therefore require such an interpretation by the courts.
Berk wrote: Sun Nov 17, 2019 22:51I do find it difficult to understand why governments like ours seem to rely on repealed legislation for institutions or citizens rights to work.
You nationality is, in general, determined at birth, so will obviously be decided by the relevant laws in effect at that time. This remains the case regardless of any subsequent changes effecting other people.

When an act is decriminalized, it does not mean anyone who committed that act in the past never broke the law. Similarly, when an act is criminalized you cannot charge someone for an offence if their act occurred before the law commenced. At least not in the majority of circumstances.

For example, you cannot charge someone with speeding because they did 40 mph in a 20-zone the day before the limit was reduced, just because the intent to prosecute was sent after the lower limit was in place. And that was my best effort to keep this tangentially relevant to this board!

When a law is repealed it is only repealed from that time forward, it does not change the past. You cannot reevaluate everyone's nationalities each time the law changes. And what if those changes have would have had effect of removing their nationality?

I am not sure why you find it difficult to understand that the nationality a person has would stay with them even should the rules change for those born or immigrating after a particular date. I am curious what you think should happen instead?
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Re: Highways Act 1980 and Highway Authorities in England

Post by Berk »

someone wrote: Mon Nov 18, 2019 02:29When a law is repealed it is only repealed from that time forward, it does not change the past. You cannot reevaluate everyone's nationalities each time the law changes. And what if those changes have would have had effect of removing their nationality?
That’s exactly what did happen to many Commonwealth citizens. Particularly to Windrush citizens - they stopped being British as soon as their birth country gained independence, although in most cases they weren’t aware of that.

You also have people who come from what are now Overseas Territories. After 1973, they would also need a visa to enter the UK, despite nominally being governed by us. They technically shared the same nationality as us until the 1981 act commenced.
I am not sure why you find it difficult to understand that the nationality a person has would stay with them even should the rules change for those born or immigrating after a particular date. I am curious what you think should happen instead?
It’s not that it’s difficult to understand. Rather the current law has a rather nasty cliff-edge to it. It means you can have brothers and sisters who were both born in the UK, a few months apart. But because one of them was born before 1983, it didn’t matter where their parents came from, but they got citizenship anyway.

The sibling born just over a year or so later does not have citizenship, and therefore the right to live in the UK, even if it’s where they’ve spent most of their life. So it can literally split families apart.

Anyway, what I was thinking more of was that the clauses that most British people gained citizenship by no longer exist (except on paper), because they’ve been repealed. They have “grandfather rights” instead.

That’s why I think it’s strange to enforce clauses that no longer exist but still have considerable impact. Fortunately transport law is a little more straightforward; you don’t normally abolish a requirement or an offence completely, just replace it with another one.
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Re: Highways Act 1980 and Highway Authorities in England

Post by Fenlander »

Berk wrote: Sun Nov 17, 2019 22:51 I do find it difficult to understand why governments like ours seem to rely on repealed legislation for institutions or citizens rights to work.

For example, when I examine passport applications, I have to use today’s legislation (the British Nationality Act 1981). In many cases now, that’s all you need.

But for customers born before 1983 (and sometimes those born later), you have to refer back to previous legislation (the BNA of 1948, and the Immigration Act as it originally read in 1971).

The clauses no longer exist, but the applicant’s status still derives from them.
You get a similar thing with driving licence entitlements, I'm old enough to have certain ones relating to larger vehicles and I think motorbikes that much later licences need a seperate test for. Grandfather rights are usually looked on as an anomaly that time takes care of.
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Re: Highways Act 1980 and Highway Authorities in England

Post by AndyB »

someone wrote: Mon Nov 18, 2019 02:29 Which piece of primary legislation would the lawyers be saying conflicted with the 1992 act?
The conflict is between the statement in the Highways Act 1980 as to what sort of council may be a Highway Authority and the power granted in the LGA to make regulations to transfer functions to successor councils without limitation as to type. Both are primary legislation, so both have equal status. As you say, implied repeal comes into it.

As a rule, everything is settled at the time the application was made or the circumstances change. A decision to reorganise local authorities made between 1994 and 2009 was done so on the authority of the LGA 1992, and not the 2009 legislation, which accepts the status quo ante for which local authorities exist and regulates future changes.

Berk discusses the right to reside of Commonwealth and Overseas Territory citizens who formerly held British citizenship.
Berk wrote: Mon Nov 18, 2019 03:10Anyway, what I was thinking more of was that the clauses that most British people gained citizenship by no longer exist (except on paper), because they’ve been repealed. They have “grandfather rights” instead.

That’s why I think it’s strange to enforce clauses that no longer exist but still have considerable impact.
Again, the status was granted under the legislation as it applied at the time - the fact that the legislation is no longer in force isn't relevant, because it only stated how immigration status could be granted at the time it was in force.

The parallel is someone who is found not guilty on a technicality: regardless of how you change the law, you can't retry the person because at the time they were tried they had not broken the law. It's also difficult (but by no means impossible) to backdate a law so that someone could be convicted of doing something which had been lawful at the time.

On the other hand, TSRGD is revoked and remade from time to time, and it explicitly states that signs erected under previous legislation remain lawfully placed, sometimes with limitations as to when they must be replaced. As a rule, however, unless a new law has retrospective effect, the results of decisions made in accordance with the law in force at the time continue to be valid.
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