For the purposes of s 100 of the Highways Act 1980, a ‘highway drain’ is defined as including a ditch, gutter, watercourse, soak-away, bridge, culvert, tunnel or pipe. However, to be such a drain it must have been constructed for the purpose of carrying away surface water from a road.

A ‘highway drain’ will not be a sewer as it is not used for the drainage of buildings and yards but it may become one if its functions to include the drainage of such premises. The key question to ask when there is a dispute as to the nature of such a pipe is: ‘for what purpose was the pipe laid?’

The same is the case where there is a dispute as to whether a drain is a land drain or a highway drain. The issue will be resolved by considering whether, in the light of all the facts, the function of the drain is to drain a highway or is to drain agricultural land.

Where a ditch adjoins a highway the presumption is