You may call a spade a spade, but when it comes to roads, there are a confusing array of descriptive terms, many of them prescriptive. A public highway isn’t just a road, it can also be a footway. A whatway? A footway is ‘a way comprised in a highway which also comprises a carriageway, being a way over which the public have a right of way on foot only.’
A footpath is a ‘highway over which the public have a right of way on foot only, not being a footway.’ Confused yet?
The word pavement isn’t very helpful either. Technically, it’s the word for the road surface, which is how Americans use the term. ‘Cyclists shouldn’t ride on pavements’ confuses the hell out of Americans. The word pavement comes from pavimentum, the top stone slabs of a Roman road.
And read that footway definition again: it includes the word carriageway. This isn’t a road restricted to carriages of the motoring kind. Got cows? Keep geese? You can herd your cattle along a carriageway. You can lead a flock of geese down your High Street. [Critical Mass leaders take note, include a few animals in your next rolling demo].
Motorists – the Johnny-come-latelies of public highway users – do not have more rights than other road users, except on motorways. Nor are motorists traffic. According to the Highways Act 1980, traffic also includes pedestrians and animals.
On Wednesday, the BBC carried a news story about a road user who repeatedly pressed a pedestrian crossing button to protest against the amount of cars and lorries rattling through his village.
The BBC reported that criminal law solicitor Robert Brown, a partner at Corker Binning, said such an action might possibly be considered an obstruction of the highway:
“A court might decide if he is doing it to prevent the passage of vehicles. It is a novel point but he is impeding the passage of vehicles and that is the purpose of the highway.”
It’s one of the purposes, but not the only one. Highways are for people, too, whether or not they are in, on or being dragged by vehicles. Most folks will think the solicitor meant cars and buses and HGVs, but he was careful to say vehicles. In law, vehicles aren’t just cars and trucks. Vehicles also include sledges, prams, wheelbarrows, sedan chairs, carts and litters. And bicycles.
Nick Hancox of Nicholas Hancox Solicitors in Norfolk, a specialist in highway law, told iPayRoadTax.com:
Most highways are open for all traffic: cars, lorries, motorbikes, push-bikes, people on horseback, people leading horses, people with prams, pedestrians and for people with flocks of geese or sheep or whatever.
Some highways which would otherwise be in that first category are restricted by Traffic Orders: ‘No HGVs’ or ‘No Pedestrians’, or whatever.
Some highways are only for a limited class of traffic: Bridleways are only for horses, bicycles and pedestrians. Footpaths are only for pedestrians.
Drove roads, or driftways, were primarily for driving livestock to market, but they were, can be, and are, also used by horseriders, wheeled carriages and pedestrians.
So, if your question were “Can I legally drive a flock of geese down my local High Street?”, the answer would usually be “Yes”. A traffic order prohibiting the driving of livestock is legally possible but in practice unlikely.
Rights of Way are mostly determined not by statute, but by common law. In other words by court judgments down the ages or, mostly, by what use has been made of the highway in question.
Highway is defined at common law as a way over which all members of the public have the right to pass and repass. Their use of the way must be as of right and not on sufferance or by licence.
The public highway is a shared resource; we must all operate give and take. This was made clear in the case of Harper v GM Haden & Sons Ltd of 1933. The judge said:
No member of the public has an exclusive right to use the highway. He has merely a right to use it subject to the reasonable use of others…The law…recognises that there are…competing public interests. The law relating to the user of highways is in truth the law of give and take. Those who use them must in doing so have reasonable regard to the convenience and comfort of others and must not themselves expect a degree of convenience only obtainable by disregarding that of other people.
Not every road is open to all. Some roads have Limitations Of Use Restrictions. For example, cyclists and pedestrians are not allowed to plan routes along motorways.
According to the Department for Transport, there are 33,435 miles of major roads in the UK, including 2211 miles of motorway. However, there are 211,675 miles of B, C and unclassified roads. So, that makes 242,899 miles of roads that all vehicles can use, including bicycles.
The 33,435 miles of major roads are what’s known as the Strategic Road Network. The SRN is the responsibility of the Highways Agency. This branch of the Department for Transport says: “The Highways Agency is responsible for all the users of this network – the cyclist, the pedestrian, the horses and their riders, not just the cars and lorries!”
As I said on this earlier story, the overwhelming majority of roads were not built with motorists in mind. Only two short stretches of road were ever built with the Road Fund (1910-1937), paid for by motorists with a ‘road tax’. (I’ll reveal the identities of these roads in a later posting).
Many of today’s dual carriageways may be blacktopped, plastered with white thermoplastic road markings and zoned with barriers but such accoutrements are largely cosmetic. When TV and movies want to portray a period scene, production crews hide road signs and spread dirt over the blacktop. Most period dramas tend to show 18th Century roads as twisty and narrow but the main ones were far, far wider than most people imagine. Stretches of the Great North Road were once much wider than even the widest parts of the current M1 motorway.
And, in my hometown of Newcastle, there’s a road not far from where I’m writing that is an excellent example of a four-lane road that most motorists probably assume was widened for their convenience. In fact, Jesmond Road – pictured at the top of this article – has been as wide as it is since 1836.
The current road is bounded on two sides by old cemeteries. Despite aborted plans to dig up graves in 1971 to make way for a motorway, the walls of the two cemeteries have not shifted. Jesmond Road was made wide for all users, and was made wide at least seventy years before the repeal of the ‘Red Flag Act’ in 1896 after which motorcars started to encroach on Britain’s ancient road network.
Within ten years, motorists believed roads of all lengths and widths were theirs. A satirical verse in Punch magazine of 1907 summed up this attitude from some drivers:
The roads were made for me; years ago they were made. Wise rulers saw me coming and made roads. Now that I am come they go on making roads – making them up. For I break things. Roads I break and Rules of the Road. Statutory limits were made for me. I break them. I break the dull silence of the country. Sometimes I break down, and thousands flock round me, so that I dislocate the traffic. But I am the Traffic.
This was wrong in 1907, and wrong today, too.