Kent potholes: how residents can use section 56 to force road repairs

Updated with Mr Derek Bennett’s Instructions to Get Roads Repaired

Kent drivers are told to report potholes, wait patiently, and trust that somewhere in County Hall a spreadsheet is humming reassuringly. But there comes a point when patience starts to look less like civic virtue and more like unpaid suspension testing. Section 56 of the Highways Act 1980 gives residents a real legal route to challenge roads that are out of repair. It is not a magic wand, and it is certainly not a free parlour game. But it is a serious statutory tool, and Kent residents should know it exists.

Every driver in Kent knows the routine. You spot the crater half a second too late, brace for impact, hear the thud, and then spend the next mile wondering whether that noise came from the wheel, the tyre, the tracking, your spine, or all four at once.

Then comes the second ritual. You report it. You get a reference number. You wait. You chase. You wait again. Somewhere, no doubt, a system has logged the complaint with all the solemnity of a medieval clerk entering a plague death in a ledger. Meanwhile, the road remains exactly where it was: broken, dangerous and perfectly positioned to introduce the next driver to the economics of alloy wheel repair.

Kent County Council says it is tackling the problem, and no doubt there are officials and highways crews working flat out to do just that. But the scale of Kent’s pothole crisis has only worsened after the recent heavy rain and cold snap, with winter weather, water ingress, drainage failures and the limits of temporary repairs still chewing fresh holes into the network. In other words, nobody can honestly say there is no effort. Equally, nobody with functioning shock absorbers can honestly say the problem has gone away.

That is where section 56 matters.

Most people think their options are limited. They can complain before the damage is done, or claim after it. The first often leads to delay. The second often leads to a polite refusal wrapped in legal language and the faint implication that your car should perhaps have developed wings. Section 56 offers something different. It is a route by which a member of the public can formally challenge a highway that is maintainable at public expense and is out of repair.

That matters because the law is interested in the physical condition of the road itself. And the legal test is not airy-fairy. As the Open Spaces Society explains, drawing on Hereford and Worcester CC v Newman [1975] 1 WLR 901, a highway “out of repair” is one where “the surface of it [the highway] is defective or disturbed in some way” or has “become unsound or impaired by neglect or use”. That is the point. This is about surface failure. About roads that have physically broken down. About potholes, fractures and carriageways that have ceased to be sensibly fit for ordinary use.

This is not just theory. A recent Hertfordshire case (20 March 2026) showed that section 56 still has teeth. A motorist, Derek Bennett, took action over roads he said were in a dire state. A judge then ordered the council to repair three roads within 20 working days. That does not mean every pothole report in Kent will now end with a judicial thunderbolt and a gang of workmen appearing at dawn. But it does mean this is not some dusty Victorian curiosity left in the statute book for decorative purposes. Used properly, it can work.

And that is precisely why residents should know about it. Kent people are constantly told to use the proper channels. Fine. They should. Report the pothole. Photograph it. Pinpoint the exact location. Keep the case number. Chase the response. Build the paper trail. And if, after a reasonable period — 14 days is a fair point at which to stop waiting politely and start escalating — the serious defect still remains, section 56 means residents do not have to stay trapped as passive complainants, staring at a broken road and a reference number as though one might somehow repair the other.

Once that groundwork is done, the next step is formal. You notify KCC in writing, name the road or roads, and allege that they are public highways maintainable at public expense and are out of repair. See our downloadable template letter below. The council then has one calendar month to respond. If that month comes and goes without a proper reply, or without any admission of liability, the issue stops being a polite exchange with County Hall and starts becoming one for the courts.

There is, however, one important note of honesty, because people should be encouraged properly, not sold a legal fairy story. The Open Spaces Society expressly warns that section 56 proceedings are civil proceedings and that there can be court fees and costs consequences. Under the current HMCTS fees list, a magistrates’ court application where no other fee is specified is £284, rising by a further £644 if the case is contested. This is not a free civic hobby or a parlour trick in legal dress. It is a serious statutory route, and it should be used seriously.

That warning should not put people off understanding the law. It should simply make them use it sensibly. Section 56 is not for every scuff in the tarmac or every minor grumble about the state of modern Britain. It is for cases where a highway is genuinely out of repair, where evidence has been gathered, and where the authority has had the chance to act and failed to do so. It is a legal instrument, not a kazoo.

It is also worth being clear about who is responsible. Not every road in Kent is maintained by KCC. Motorways and major A roads may be for National Highways. Public rights of way sit in a different category again. There is little point charging into statutory battle only to discover you have served notice on the wrong body. Even by British administrative standards, that is an avoidable way to spend an afternoon.

The broader point is simple. Residents should stop assuming that meaningful action only starts after the damage has already been done. By then the argument is often about inspection records, liability and whether the authority can rely on its legal defences. Section 56 changes the emphasis. It is about the road itself. It is about putting the maintenance duty front and centre before the next cyclist, motorcyclist, pedestrian or driver is left to discover the defect the hard way.

None of this means KCC is doing nothing. It plainly is doing something. It has put real money into roads and it says crews are out in force. But the public test is not how often the phrase “major investment” appears in a press release. The test is whether the road outside your house, school, business, estate or village is actually safe to use.

So yes, report potholes in the normal way. But also know this: Parliament gave the public a legal tool decades ago, and it is still there. Kent residents do not have to settle for the modern civic ritual of complaint, delay, apology, patch, collapse and repeat.

Where a road is truly out of repair, they can serve notice.

How to serve a section 56 notice on KCC

First, make sure it really is KCC’s road. If it is a motorway or major A road, it may be National Highways’ responsibility instead. If it is a public right of way, the route may be different. The first rule is simple: aim at the correct target.

Second, report the defect through KCC’s usual system. Keep the reference number. Take clear dated photographs. Record the exact location. If it is safe to do so, note the size and depth of the defect. Keep every email and every response. A section 56 case without a paper trail is rather like a pothole repair without tarmac: full of hope, but not obviously complete.

Third, send KCC a formal written notice under section 56 stating that the road is a highway maintainable at public expense and is out of repair. Stick to the facts. Name the road, identify the exact stretch, and describe the defects clearly and properly. Save the grand lament for the pub. Click here for a downloadable template example. Just remember: we are not lawyers, as is made clear in the template example.

Fourth, ask KCC to say whether it admits that the road is maintainable at public expense and that it is the authority liable to maintain it. That admission point matters under the statutory scheme.

Fifth, if liability is admitted but the road is still not repaired, the usual next step is the magistrates’ court. If liability is not admitted, the route is generally the Crown Court. Because this is a civil process with potential costs consequences, anyone going beyond the notice stage should think carefully and, where appropriate, take legal advice.

And finally, remember the golden rule. Section 56 is powerful precisely because it is formal, specific and evidence-based. It is not social-media outrage in a hi-vis jacket. It is law.

UPDATE – Here is the advice by Mr Derek Bennett’s Instructions to Get Roads Repaired we are not responsible for its content

The Shepway Vox Team

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