Paths Greenways Bridleways Tracks
 PG: OBJECTS: EDUCATION: Maintainability (General rules - other provisions also apply)
Current Rules for Paths
At Common Law, all highways were maintainable by the inhabitants at large. Any highway existing before the Highways Act 1835 is automatically maintainable at the public expense. Section 23 of the 1835 Act set out procedures for carriageways to become maintainable by the inhabitants at large. Footpaths and bridleways were first caught by the Highways Act 1959. Maintainability
This route is maintainable at the public expense because it was a highway existing before 1835.
This route is maintainable at the public expense because it was a footpath or bridleway existing before 30 Apr 1959.
The general rule is set out in s.36 Highways Act 1980.
Sub-s(1) says that routes maintainable at public expense for the purposes of the Highways Act 1959 at commencement of the 1980 Act remain so maintainable.

Sub-s(2) in essence says that paths created by statutory process shall be maintainable.

(a) a highway constructed by a highway authority... Maintainability
This route is maintainable at the public expense by virtue of s.36(2)(a) Highways Act 1980. [Constructed by Highway Authority]
(b) a highway constructed by a council under Part II of the Housing Act 1985... Maintainability
This route is maintainable at the public expense by virtue of s.36(2)(b) Highways Act 1980. [Housing Act 1985]
(c) a highway that is a trunk road or a special road; ... Maintainability
This route is maintainable at the public expense by virtue of s.36(2)(c) Highways Act 1980. [Trunk Road or Special Road]
(d) a highway, being a footpath, bridleway or restricted byway, created in consequence of a public path creation order or a public path diversion order or in consequence of an order made by the Minister of Transport or the Secretary of State under section 247 of the Town and Country Planning Act 1990 or by a competent authority under section 257 of that Act, or dedicated in pursuance of a public path creation agreement. Maintainability
This route is maintainable at the public expense by virtue of s.36(2)(d) Highways Act 1980. [Public Path Creation Order]
This route is maintainable at the public expense by virtue of s.36(2)(d) Highways Act 1980. [Public Path Diversion Order]
This route is maintainable at the public expense by virtue of s.36(2)(d) Highways Act 1980. [s.247/s.257 Town and Country Planning Act 1990]
This route is maintainable at the public expense by virtue of s.36(2)(d) Highways Act 1980. [Public Path Creation Agreement]
(e) a highway, being a footpath, bridleway or restricted byway, created in consequence of a rail crossing diversion order, or of an order made under section 14 or 16 of the Harbours Act 1964, or of an order made under section 1 or 3 of the Transport and Works Act 1992. Maintainability
This route is maintainable at the public expense by virtue of s.36(2)(e) Highways Act 1980. [Rail Crossing Diversion Order]
This route is maintainable at the public expense by virtue of s.36(2)(e) Highways Act 1980. [s.14/s.16 Harbours Act 1964]
This route is maintainable at the public expense by virtue of s.36(2)(e) Highways Act 1980. [s.1/s.3 Transport and Works Act 1992]
(f) a highway, being a footpath, a bridleway, a restricted byway or a way over which the public have a right of way for vehicular and all other kinds of traffic, created in consequence of a special diversion order or an SSSI diversion order. Maintainability
This route is maintainable at the public expense by virtue of s.36(2)(f) Highways Act 1980. [Special Diversion Order]
This route is maintainable at the public expense by virtue of s.36(2)(f) Highways Act 1980. [SSSI Diversion Order]
Additional Rules Relating to RUPP Reclassification
It was a RUPP reclassified under para 9 sch 3 Countryside Act 1968.

Para 7 of Schedule 3 specified that the first review of the definitive map and statement carried out by the surveying authority after the Act came into force would be a 'special review'. Para 9 required that in a special review, a RUPP was to be shown as a byway open to all traffic, a bridleway or a footpath. Subpara (2) provided:

(2) As from the date of publication of the definitive map and statement in the special review—
(a) each way shown in the map in pursuance of this paragraph by any of the three descriptions shall be a highway maintainable at the public expense 		Maintainability
This route is maintainable at the public expense by virtue of para 7 of Sch 3 to the Countryside Act 1968. [Converted from RUPP]
It was a RUPP reclassified under s.54 Wildlife and Countryside Act 1981.

Section 54 required surveying authorities to review any routes shown on the definitive map and statement as a road used as a public path and to reclassify it as byway open to all trafic, bridleway or footpath. Subsection (4) provided:

(4) Each way which, in pursuance of an order under subsection (1), is shown in the map and statement by any of the three descriptions shall, as from the coming into operation of the order, be a highway maintainable at the public expense ; and each way which, in pursuance of paragraph 9 of Part III of Schedule 3 to the 1968 Act, is so shown shall continue to be so maintainable. Maintainability
This route is maintainable at the public expense by virtue of s.54(4) Wildlife and Countryside Act 1981. [Converted from RUPP]
1959 Rules for Paths
The general rule was set out in s.38 Highways Act 1959.
Sub-s(1) removed the duty of maintenance that previously fell on the inhabitants at large of any area.

Sub-s(2)(a) says that routes maintainable by the public at large or by a highway authority at commencement of the 1959 Act remain so maintainable.

Sub-s(2)(b-e) in essence says that paths created by statutory process shall be mainatainable.

(b) a highway constructed by a highway authority...

(c) a highway constructed by a council under Part V of the Housing Act 1957...

(d) a highway that is a trunk road or a special road; ...

(e) a highway, being a footpath, bridleway, created in consequence of a public path creation order or a public path diversion order or dedicated in pursuance of a public path creation agreement.

(e) a highway, being a footpath, bridleway or restricted byway, created in consequence of a rail crossing diversion order, or of an order made under section 14 or 16 of the Harbours Act 1964, or of an order made under section 1 or 3 of the Transport and Works Act 1992.

Other Paths
The effect of the various pieces of legislation is that a path that does not qualify to be maintainable at public expense is not maintainable (for example, a path that is simply dedicated other than by a public path creation agreement) or is maintainable by the landowner (for example, rate routes maintainable because they were enclosed).

While every endeavour has been made to give accurate information, the law is complex, subject to different interpretations and subject to change. The contents of this website are offered to help registered supporters and general readers, but do not constitute formal legal advice.
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