Alastair Frew
I am a partner in Lodders’ Real Estate Group and head of the Business Property team, having joined the firm in 2002. My clients often include business owners, commercial developers, private investors, and niche housebuilders, as well as the financial institutions that fund them. I also lead the Renewable Energy team at Lodders. In this team, we guide a growing number of landowners through the complex documentation needed for matters like forming a solar PV development, establishing a battery storage scheme, and incorporating a wind farm. I have published books through Law Brief Publishing on the subjects of highways and renewable energy, and regularly contribute to Lexis Nexis.
Practice Area
Panels
- Contributing Author
- Q&A Panel
Qualified Year
- 1996
Education
- University of Liverpool (BA Hons)
- University of Central England (CPE and LPC)
13 Contributions by Alastair Frew
PRACTICE NOTES
Case law on highway authorities’ duties in adverse weather: flooding, drainage and ice under the Highways Act 1980 (England and Wales)
This Practice Note reviews case law on the highway authority’s obligation to maintain highways at the public expense during periods of adverse weather. Those decisions reveal a clear distinction between permanent dangers arising from want of repair and transient hazards attributable to the elements, and confirm that, in practice, an authority is required only to act reasonably and is not expected to achieve daily miracles over the winter months. The duty on every highway authority to maintain any highway maintainable at the public expense becomes more onerous when severe conditions prevail in winter. Ice, snow and flooding all increase the risks on the highway network and each makes the maintenance authority’s task considerably more difficult. The following cases demonstrate the need to balance obligations owed to the public with the sensible use of limited resources:
Flooding
Burnside v Emerson
In Burnside v Emerson, Mr Emerson’s car entered a pool of water, lost control and swung into the path of a vehicle driven by Mr Burnside. The highway authority responsible for the road where the incident occurred was joined as the second defendant in the proceedings...
Local Government
PRACTICE NOTES
Definitive Maps and Statements of Public Rights of Way: Statutory Basis, Modification Orders and Procedures (England and Wales)
This Practice Note outlines the legislative foundation, character and role of the definitive map and statement that a highway authority must maintain for the public rights of way within its area, under the Wildlife and Countryside Act 1981 (WCA 1981). It describes the authority’s obligation to keep the map and statement under continual review, to update and amend them when needed, and the events and orders that will necessitate alteration of the map and statement. It also details the procedures for making a modification order, whether commenced by the authority or prompted by an application to the authority from another party. It clarifies what triggers a review and how alterations are implemented.
Statutory basis and effect
Each highway authority is required to compile, and keep under review, a definitive map and statement (DMS) of the public rights of way in its area. The map identifies the route and status of the highways. The statement specifies the alignment and width of the right of way, together with any limitations that qualify those rights...
Local Government
PRACTICE NOTES
Ferry franchises as incorporeal hereditaments: creation, exclusivity, and operators’ duties to carry and rights to curtail service
At common law, highway ferries fall into two types, identified by the routes they take. One type operates between towns or to a specified island, while the more usual type links two named highways, each situated on opposite sides of a body of water. The Highways Act 1980 (HiA 1980) deliberately leaves ferries outside the statutory definition of a highway, yet the common law regards them as comparable to highways, carrying particular rights and obligations. What sets a ferry apart from other forms of highway is:
a ferry is a franchise vested in an individual or a corporation
the power to operate a ferry carries both privileges and duties
the ability to use a ferry is qualified and limited
A ferry as a franchise
The general principle is that anyone with a boat may transport a passenger across a navigable river; however, that principle yields where such use of a boat amounts to running a ferry. The ferry owner enjoys a monopoly, and the courts will protect that exclusivity against competition...
Local Government
PRACTICE NOTES
Highway diversions, deviation rights and closure through natural causes: common law principles and maintenance duties (England and Wales)
This Practice Note discusses the common law on highway diversions
It sets out that the essential feature is movement from A to B, rather than the specific parcel of land over which the right of way is believed to lie, and it also covers highway closure brought about by natural forces. It further explains that where a highway on or close to the coast is destroyed by incursions from the sea, the courts will not require the authority charged with its maintenance to reinstate it to a serviceable condition. While the common law acknowledges the force of the maxim ‘once a highway, always a highway’, there are, inevitably, some exceptions. In R v Secretary of State for the Environment, ex p Burrows; R v Secretary of State for the Environment, ex p Simms, Purchas LJ observed: ‘At common law the rule was and remains “once a highway, always a highway”’...
Local Government
PRACTICE NOTES
Highway land in England and Wales: statutory vesting versus full ownership, extent of the authority's interest ('top two spits'), and acquisition powers, with case law and Highways Act 1980
This Practice Note outlines the distinction between highway land that is only vested in the highway authority and highway land that is owned outright by the authority. It highlights leading cases and statutes, notably the Highways Act 1980 (HiA 1980) and the Local Government Act 1929 (LGA 1929), and clarifies that, where land is merely vested, the authority’s proprietary interest extends physically to the upper two spade-depths of the relevant land, or to such depth as is required for the construction and maintenance of the highway, including associated drains. Whilst that form of vested ownership will usually suffice, highway authorities may purchase freehold estates in land under the HiA 1980 for the creation of new or improved highways. Some highway land is only vested in the highway authority, whereas other highway land belongs entirely to the authority...
Vested land
The key to understanding the ownership of highway land is rooted in its historical development...
Local Government
PRACTICE NOTES
Highway maintenance: duty to repair, inspection systems, extraordinary traffic and section 58 defence under the Highways Act 1980 (England and Wales)
This Practice Note
This Practice Note sets out that the standard of highway maintenance required is determined by the level of expected ordinary traffic on the route concerned. It further explains that a person injured by a danger on a highway may sue the highway authority in negligence, and that the authority has a statutory defence under the Highways Act 1980 (HiA 1980) if it can show it exercised reasonable care. It also notes that, at common law, the obligation is to keep the highway in a reasonable condition rather than to improve it. The authority must carry out routine inspections of the highway surface and run a system for incoming reports of damage; however, the duty to keep the highway in repair does not extend to damage caused by extraordinary traffic. A highway authority is under a duty to ‘maintain the highway’...
Local Government
PRACTICE NOTES
Highway Nuisance in England and Wales: Common Law and Highways Act 1980 on Builders’ Works, Scaffolding/Skips, Traffic (racing, stopping), Bridges, and Nuisances from Adjoining Land (Animals, Pigeons, Smoke, Trees)
This Practice Note outlines highway nuisance law, and records that section 333 of the Highways Act 1980 (HiA 1980) expressly preserves common law.
It considers when activities on or over the road may constitute a nuisance, with reference to statute and the common law, including:
builders’ works, scaffolding and skips;
racing and unsuitable traffic;
stationary traffic; and
bridges and beams spanning the highway.
It also surveys likely nuisances arising from neighbouring land, such as:
domestic or farm animals;
pigeons;
smoke and fumes; and
trees.
Common law and statute law
Regarding highways, nuisance at common law substantially overlaps with statutory provisions (principally within the HiA 1980), yet HiA 1980, s 333 specifically preserves the common law. Pratt and Mackenzie’s Law of Highways (21st edition, 1967) describes a highway nuisance as any wrongful act or omission on or near a highway that prevents the public from proceeding freely, safely and conveniently along it...
Local Government
PRACTICE NOTES
Highways in England and Wales: public rights, classifications by traffic and maintenance, and definitions of key types
This Practice Note
This Practice Note concerns the public’s legal entitlement to use vehicles, to ride a horse, or to drive animals along most highways. It outlines that the commonest ways of categorising highways are by the traffic allowed (for example, a footpath or bridleway) and by the maintaining authority (for example, a classified road or GLA road). It also provides an alphabetical list with descriptions of the principal highway types in England and Wales.
The essential public right over a highway is for any person to pass and re‑pass along its length. On the majority of highways—though not every one—there is, in addition, a lawful right to use vehicular transport and/or to ride a horse and/or to drive animals from one place to another.
The most usual classifications of highways into types are by permitted traffic and by maintenance authority. The classification of a highway by its permitted traffic has two sources:
at common law, the dedication (or deemed dedication) of a new highway can be limited to rights for specified traffic, ie as a footpath, as a bridleway or as a carriageway
...
Local Government
PRACTICE NOTES
Street works and statutory undertakers: NRSWA 1991 duties, permits, notices, lane rental, permit schemes and common law liability (England and Wales)
This Practice Note outlines the procedure for statutory undertakers and holders of street works licences to use the highway for utility works and apparatus under the statutory framework in the New Roads and Street Works Act 1991 (NRSWA 1991) and other enabling legislation. It explains who qualifies as statutory undertakers and sets out the duty of care owed, both under statute and at common law, to other highway users.
Street works at common law
At common law, interfering with the surface of a highway amounts to a nuisance. In the nineteenth century, utility companies seeking to route underground pipes and cables along highways—though these were the most obvious corridors—were, in the absence of statutory powers, restrained by the courts from placing their apparatus. The Sheffield Gas and Cambridge Gas cases illustrate this principle.
Street works—liability in negligence
Even where legislation authorises interference with, or use of, the highway for utility works and apparatus, statutory undertakers and those holding street works licences continue to owe a duty of care to other highway users...
Local Government
PRACTICE NOTES
The statutory right to roam: access land, excepted land, public rights, mapping reviews, management and landowner liability under the Countryside and Rights of Way Act 2000 (England and Wales)
The right to roam over open land shares traits with the ability to move from A to B that defines a public highway, yet it exists solely by statute. It is chiefly contained in the Countryside and Rights of Way Act 2000 (CRWA 2000). Unlike highway rights, roaming requires no fixed origin or destination in either use or definition. CRWA 2000 was brought in to clarify and broaden the public’s right to walk across open countryside. The legislation’s assorted regulations and restrictions make plain that walking is allowed, while walkers must respect the rights of other countryside users. CRWA 2000 was brought in to clarify and broaden the public’s right to walk across open countryside. The legislation’s assorted regulations and restrictions make plain that walking is allowed, while walkers must respect the rights of other countryside users.
Access land
CRWA 2000 provides and defines access solely on access land. Many exceptions and restrictions apply to the right to roam on access land...
Local Government
PRACTICE NOTES
Traffic signs and road markings in Great Britain: statutory definitions, authority powers and duties, unauthorised signage offences, and central government control under TSRGD 2016 and DfT guidance
Definitions
Section 64(1) of the Road Traffic Regulation Act 1984 (RTRA 1984) defines a traffic sign as any object or device, whether fixed or portable, used to convey to traffic on roads, or to any specified class of traffic, warnings, information, requirements, restrictions or prohibitions of any kind, either (a) specified by regulations made by the relevant authority or (b) authorised by the relevant authority; it also covers any line or mark on a road employed for conveying such warnings, information, requirements, restrictions or prohibitions.
The definition therefore spans the sign types familiar to road users, namely:
warning signs (typically triangular with a red border)
mandatory prohibition signs (typically circular with a red border)
mandatory signs (typically circular and blue)
information signs (typically rectangular)
This last group includes direction signs, place name signs and street name signs, and also road surface lines: yellow (and occasionally red) for parking restrictions, with white used for most other purposes.
Powers and duties
For a local traffic authority, placing signs on highways is usually lawful and often a requirement...
Local Government
Q&As
Council lighting maintenance: powers of entry, private land obstructions
For this Q&A, it is assumed that the lighting apparatus is intended to illuminate the highway, and that the local council is, in addition, the highway authority as well for these purposes...
Local Government
Q&As
Pedestrian rights of way: safe crossing beside security barriers
The straightforward answer to this question is no, provided the security barrier is deemed safe for those on foot. A security barrier is generally a gate, featuring either a rising arm or a horizontal swing from a fixed hinge. Although it can be feasible for a barrier to be safe for both vehicles and pedestrians, they are commonly designed to suit only one of these two uses. A barrier intended to stop vehicles is not well suited to preventing pedestrians from passing through. Because cars and people differ markedly in scale and movement, it is usually simpler to install two different gate types. From a security standpoint, a basic vehicular gate will not exclude pedestrians. More importantly, a gate meant for vehicles can pose a significant risk to pedestrians...
Planning
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