The court considered an arbitration award relating to responsibilities for the cost of maintaining a so-called ‘Esplanade’ adjoining the highway, and a sea-wall and groynes which had been built to protect it from inundation. The statute enabled the highway authority to recover from the county council a contribution towards the cost of ‘maintenance and repair’ of the highway. Lord Halsbury LC set out the scope of the highway authority’s duties. A distinction had been drawn by the arbitrator between works which were part of the road ‘strictly speaking’, and that part of the works which was ‘so necessary to the maintenance of the main road, that unless the construction was there the main road might be washed away’. Lord Halsbury said: ‘It was argued before the arbitrator that in point of law the expenses, as regards that part, were not recoverable because it was not part of the main road. To my mind that contention is absurd. Is it common sense to say that where the obligation is to maintain the road and keep it in repair, you can by neglect, allow that duty to be so disregarded that in time the road may be washed away, so that your liability or obligation ceases? Such a proposition is, to my mind, absolutely monstrous. The obligation at common law, and the same obligations have been handed on to the various bodies which in turn have received by statute the obligations and duties in respect of roads, is absolute, that they must keep in repair the roads in their parish Can anything be more clear than this, that the obligation is absolute in the first instance on the proper body whoever it be?
Then the proposition appears to be this, that if you take a main road, not merely the via trita, but that part of it which is said to be dedicated to the public, your jurisdiction must be limited to, and does not go an inch beyond that which is the highway. If that be so, if you want to cut a gutter to prevent the road from being flooded, or to take a culvert under it, where is your culvert to start? Have you no jurisdiction to dig a hole to allow the water to go through the culvert, so as to preserve the road? The truth is that you might put forward half a dozen hypotheses to show that such a construction of the law would reduce the whole thing to an absurdity, and render the administration of the road authority absolutely impossible I have no hesitation in saying that, assuming a thing to be necessary for the preservation of the road, and assuming that the local authority is under obligation to keep up the road, the law of England is that you shall keep up that road by whatever means are appropriate and necessary to do it. ‘ As to the repair of the groynes, he specifically rebutted the contention that the word ‘maintenance’ had no independent meaning: ‘Then the proposition is this. You cannot do anything of this sort to maintain the road; you must allow it to go out of repair each year, although that would involve extraordinary and unnecessary expense to the parish or local body, whatever it might be; you must do that because your only power is to repair the road. In that argument I think that the word ‘maintenance’ appears to have escaped the attention of those so arguing: the maintenance of the road is quite as much a part of the duty as the ‘repair’ . . ‘
Judges:
Lord Halsbury LC
Citations:
(1898) 79 LT 425
Statutes:
Local Government Act 1888 11(2)
Cited by:
Cited – Department for Transport, Environment and the Regions v Mott Macdonald Ltd and others CA 27-Jul-2006
Claims arose from accidents caused by standing water on roadway surfaces after drains had not been cleared by the defendants over a long period of time. The Department appealed a decision giving it responsibility under a breach of statutory duty . .
Lists of cited by and citing cases may be incomplete.
Local Government
Updated: 01 May 2022; Ref: scu.244627