You will have heard the term 'highway' and perhaps thought it meant the same thing as a road.
To find the term's meaning, we must look at the Highways Act of 1980. This is not very helpful but says in s328 "highway” means the whole or a part of a highway other than a ferry or waterway."
Fortunately, there is also a common law definition. This is generally accepted as being "A highway is a way over which the public can freely pass and repass, at all seasons of the year, without let or hindrance."
From these, we can work out what a highway is. Firstly, it is a 'way'. In other words, it must physically exist. If a piece of land is washed into the sea, for example, any highway over it ceases to exist.
Also, The public (i.e. anyone) can pass and repass. They can travel from A to B and B to A to travel from one to the other. This is distinct from loitering along the way which is not necessarily permitted. The public must be able to pass and repass with let or hindrance. This means without being charged or having to ask permission.
So a way that exists, over which the public can pass without payment or permission is a highway. This includes everything from the lowliest footpath to the busiest main road.
How are highways created?
Highways can be legally created. This is what happens when a new road is built. They can also be created by diverting an existing highway such as rerouting a footpath around a new building as part of the planning process.
More commonly recreational highways get created using common law. This can happen through acceptance or dedication.
Acceptance is where the public has used the way, and everyone accepts it as a highway.
Dedication takes 20 years of continuous public use without hiding the use, being charged or given permission. However, this can be considerably shorter if it appears that the landowner intended to dedicate the way for the public to use. In one case, a way was deemed to be dedicated in less than 1 year as the public were using it under the gaze of railway porters - employees of the landowner - who did nothing to question or prevent the use.
What are the types of highways?
We can divide highways into two ways: by how they can be used or by who is responsible for maintaining them.
How can highways be used?
Except for Restricted Byways, all of the other classes exist away from the Definitive Map as well as being included on it.
How maintains a highway?
There are three possible maintenance arrangements for highways
We will consider all these options in other articles.