Highway maintenance and obstruction: liability of adjacent landowners

A recent decision by the Court of Appeal considers whether adjacent landowners owe a duty of care to highway users.

26 June 2018

The courts have recently considered the liability of a landowner for vegetation growing on land next to a road junction. The topic arose in proceedings brought by a cyclist against the driver of the car following an incident in which the car collided with the cyclist causing injury while emerging from a junction where vegetation impaired visibility. The driver’s insurers contended that the highways authorities should be found liable in negligence for allowing the vegetation to create an obstruction to visibility, resulting in a danger to highway users (Roy Sumner v Michael Colborne, Denbighshire County Council, The Welsh Ministers [2018] EWCA Civ 1006).

The Welsh ministers and the County Council are the highways authorities for the roads at the junction in question. The Welsh ministers owned the land adjacent to the junction upon which the vegetation was growing. The vegetation was subject to regular maintenance by the County Council. At the time of the accident the vegetation was sufficiently dense and tall so as to restrict visibility for users of the highway.

General maintenance duties of highway authorities

A highway authority is under a statutory duty to maintain the highways maintainable at the public expense for which is it responsible. This duty is owed to all users of a highway, who can claim damages for physical injury or damage caused by a failure to comply with the duty. The standard that the highway authority must meet in maintaining a highway is not that of a perfect highway which complies with every modern standard for design and safety. Rather, the authority must take such care as is reasonably required in all the circumstances to secure that the highway is not dangerous for traffic. Minor country roads will not be held to the same standard as major trunk roads or motorways, and the nature of the character and use of a road will be relevant in determining what constitutes an acceptable standard. There is longstanding court authority that road users must take a highway as they find it, that the highway network is imperfect and drivers must take due care in using it.

The duty to maintain the highway will only apply to land that forms part of the highway. While the carriageway is clearly highway, it is not always as clear what elements of adjacent land, such as verges, will form part of the highway, particularly on older routes where mapping is often unclear. In such cases, what is highway, and therefore liable to maintenance by the authority, will depend on the facts and circumstances, including the existence of any features such as walls, fences or ditches that would prevent passage and therefore will often indicate the boundary of the highway.

In addition to the maintenance of the highway, an authority has other statutory duties and powers relating to the use and safety of highways. These include powers to prevent interference with public rights of passage, to provide information such as warning signs, and to undertake works such as alterations and improvements. Highway authorities can require landowners and occupiers to remove vegetation overhanging the highway if it endangers or obstructs users or interferes with the view of drivers. Similarly, highways authorities can require a landowner or occupier to remove vegetation that is likely to cause danger by falling into the highway. Should the owner or occupier fail to comply, the highways authority can do the works themselves and recover the costs.

The court's consideration

In the present case, the vegetation was growing within a fenced area on land adjacent to the verge and was not considered to be on the highway itself. The case therefore focused on whether the Welsh ministers, as an adjacent landowner,owed a duty of care to road users to ensure that the vegetation did not restrict sight lines at the highway junction.

The court considered that there is a clear distinction between obstructions on a highway and on adjacent land. While there is a duty not to obstruct the highway itself (including not to obstruct necessary visibility on the highway), the arguments against extending that duty to adjacent landowners were very strong. As the court noted, finding that there is a duty of care on landowners not to obstruct visibility for highways would have far-reaching implications for landowners where other structures, including buildings, restrict visibility. The court concluded that it would not be 'just, fair and reasonable' to find that there was a duty of care in this case.

Further considerations for highway authorities

A number of statutory planning and highway powers are in place to deal with issues of sight lines on the highway. Authorities have a suite of powers that can be used to improve and maintain junctions and visibility splays. Highways authorities have a range of options for ensuring that sight lines are protected without the authority being responsible for maintaining adjacent land, in particular through the planning system and the use of conditions.

The land in the case before the court was owned by the Welsh ministers. They had come to own the land 10 or so years earlier so that they could undertake drainage improvement works to the highway for which they were responsible. This case highlights the importance of dealing with ‘spare’ land after a road has been constructed or improved. Does it make sense for the land to remain in the highways authority portfolio or would it be better transferred back to the original landowner? In reaching a decision, the financial value, practical value and liabilities associated with the land will need to be considered. 

How can Burges Salmon help?

For more information about the issues in the case or more generally about highways or local government, please contact Paula McGeady or Gary Soloman.

Key contact

Gary Soloman

Gary Soloman Partner

  • Head of Planning and Compulsory Purchase
  • Regeneration and Highways
  • Compulsory Purchase and Compensation

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