The law relating to highways is largely contained in Acts of the UK Parliament, the most significant of which is the Highways Act 1980 (HA 1980). The term ‘highway’ is defined for the purposes of HA 1980 as meaning (except where the context otherwise requires) the whole or a part of a highway other than a ferry or waterway. In addition, where a highway passes over a bridge or through a tunnel, that bridge or tunnel is taken for the purposes of HA 1980 to be a part of the highway. In practice, reference must be made to the common law rules as to the meaning of a highway, which is essentially a way over which all members of the public have the right to pass and to re-pass over a defined route.
For the purposes of highways legislation certain terms are defined, including carriageways, trunk roads, footways, footpaths, bridleways, public paths and cycle tracks.
All highways authorities are under a duty by virtue of section 130(1) of HA 1980 to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority. Part IX of HA 1980 contains miscellaneous provisions concerning interference with highways, including penalties for wilful obstruction and for causing certain kinds of danger or annoyance.
Subject to exceptions related to the Severn Bridges and their vicinity, the Welsh Ministers are the highway authority in Wales for trunk roads, special roads provided by them, highways for which they are responsible under any enactment, highways transferred to them and highways constructed by them that have not been transferred to any local highway authority (see s1(1) of HA 1980). Trunk roads are roads of national importance to which section 10 of HA 1980 applies.
Each county council or county borough council is the highway authority for all highways in its area, whether or not maintainable at public expense, where the Welsh Ministers are not the highway authority.
HA 1980 places a duty on the Welsh Ministers to maintain highways maintainable at the public expense for which they are the highway authority. Such highways include trunk roads such as the A470 North-South Wales route and special roads such as the M4 motorway in South Wales. In respect of other highways, the highway authority will nearly always be the local council, other than in exceptional cases where for example the Welsh Ministers construct a highway other than a trunk road using their powers under section 24(1) of HA 1980.
Most highways are maintainable at the public expense, by virtue of section 36 of HA 1980. Public footpaths are repairable at the public expense unless some individual is liable to repair them by reason of holding an interest in the land or otherwise. Highways created by highway authorities are maintainable at the public expense as are all paths dedicated prior to December 16, 1949’ all paths created since that date by virtue of public path creation orders or agreements, and all paths which have otherwise been adopted by the highway authority by virtue of one of the adoption procedures in HA 1980 and its predecessors.
The Welsh Ministers may acquire land required for the construction of a trunk road; and any highway authority may acquire land required for the construction of a highway which is to be maintainable at the public expense, other than a trunk road. A highway authority may acquire land required for the improvement of a highway, being an improvement which it is authorised to carry out in relation to the highway. The powers of acquisition extend to the creation and acquisition of rights.
The power of acquisition of highway authorities described above is exercisable either compulsorily or by agreement.
The Active Travel (Wales) Act 2013 is an Act of the National Assembly and makes provision for the mapping of active travel routes and related facilities by county and county borough councils and for requiring the Welsh Ministers and local councils to take reasonable steps to enhance the provision made for, and to have regard to the needs of, walkers and cyclists.
Functions of the National Assembly under the Transport (Wales) Act 2006 are now exercisable by the Welsh Ministers. The following functions of the Secretary of State under the remaining Acts of the UK Parliament listed under 'key legislation' have been transferred to the Welsh Ministers pursuant to the Government of Wales Act 2006 (GOWA 2006), subject to certain exceptions and directions, set out in the National Assembly for Wales (Transfer of Functions) Order 1999 (SI 1999/672):
Highways Act 1980 except:
(a) the Treasury function under section 327(4);
(b) functions exercisable by the Secretary of State in pursuance of section 329(5); and
(c) functions exercisable by the Secretary of State in relation to that part of the M4 Motorway in Wales which comprises “the New Toll Plaza area” and “the New Bridge”, as defined in section 39(1) of the Severn Bridges Act 1992 (c 3).
Cycle Tracks Act 1984 (c 38) section 3.
Town and Country Planning Act 1990, sections 247 to 261.
In addition to the primary legislation dealing with highways, there is large amount of subordinate legislation made under that legislation (such as orders, regulations, schemes and codes). Before the devolution of power to the National Assembly in 1999, much subordinate legislation was made separately for Wales by the Secretary of State for Wales and some was made for England and Wales by both the Secretaries of State for Wales and the Secretary of State for Transport jointly. Some of these pre-devolution instruments remain in force. The functions of the Secretary of State for Wales were transferred to the National Assembly for Wales in 1990 ( by the National Assembly for Wales (Transfer of Functions) Order 1999) and this included most of the functions of the Secretary of State to make subordinate legislation under the Acts listed under 'key legislation' which existed at that time. From then on, the Assembly exercised the transferred powers to make subordinate legislation for Wales until 2007 when these powers were further transferred to the Welsh Ministers on the coming into force of the Government of Wales Act 2006.
The domestic courts have also produced a large volume of case law on highways matters.
EU law also has an impact on transport law in Wales. The European Parliament has for example issued a directive (2008/96/EC) on road safety infrastructure management and also in relation to safety requirements for tunnels in the trans-European road network (EU Directive 2008/96). European directives in the field of environmental law also have an impact, such as Directive 85/337/EEC (as amended by Directive 97/11/EC) on the assessments of the effects of certain public and private projects on the environment. This Directive was transposed into the highways law of England and Wales by sections 105A-D of the Highways Act 1980, which includes a requirement for the environmental impact assessment of certain projects for the construction of improvement of roads.