If you are acquiring or developing property it is essential that you are able to access your property and that you understand what maintenance costs you may be liable for. You may also need to stop-up or divert a highway, or carry out works to or below it. This note provides an overview of some of the key issues that property owners and developers should be aware of.

What is a highway?

In the broadest sense a highway is a “way” over which the public have the right to pass and re-pass. A “way” is simply a defined route and includes a road, bridleway or footpath.

The public’s right to use a highway may be limited depending on the type of highway concerned – for example, on foot only (footpaths and pavements), on horseback (bridleways), or, most typically, “with or without vehicles” (vehicular roads).

Ownership of Highways

Highway land does not usually belong to the highway authority, although it may do (eg estate roads within a local authority development or land acquired by Compulsory Purchase Order for a highways scheme). Where the land is not owned by the highway authority, its interest is limited to the surface of the road (“the top two spits” as Lord Denning once put it). The sub-soil usually belongs to someone else.

In some cases a person may be able to show title to the road (subject to the highway authority’s interest) but in most cases – especially if the highway has existed for a long time – that won’t be the case. Where no-one is able to show title the presumption ad medium filumapplies: each owner of land fronting onto the highway is presumed to own the sub-soil up to the mid-point of the road, for the length of their frontage. If the highway were to be stopped up then that piece of land would be owned outright by that frontager.   

Duty to Maintain

The public’s right to pass and re-pass is independent of duties to maintain. You need to keep the two issues separate in your mind.

Vehicular roads

In the majority of cases these will be “highways maintainable at the public expense”. This means that the highway authority is responsible for maintenance. However, it is not unusual for a road to be a highway but maintainable by the owners of the subsoil (usually the frontagers – see the presumption ad medium filum above).

You may also come across “private streets”. This term indicates that there is no public right of way over the street and (obviously) the maintenance is therefore a private matter for the owners/frontagers. There will often be a gate at the entrance to a private street; this is explained further under creation/adoption of highways below. If the only access to a property is via a private street you need to ascertain: (1) that there is an adequate right of way (with or without vehicles if required) over the street to the property; and (2) what the property owner’s maintenance liabilities in relation to the street are.

Footpaths and bridleways

No-one has a duty to maintain the surface as such, although the highway authority has a duty to keep the way open and clear of obstruction.

Creation/Adoption of Highways

Highways in existence in the early 19th Century, when modern highways legislation was first enacted, were simply deemed to be highway under the terms of the original legislation.

For new roads you need to distinguish between creation (making a road a highway with public rights to pass and re-pass) and adoption (the process by which the local authority takes on the liability for maintenance of the highway).

Creation

There are a number of ways for new roads to become highways. The most important are:

  • Creation by construction – if a highway authority builds a highway, once it is opened to the public it becomes a highway.
  • Creation by dedication/agreement – by far the most common. Where a developer constructs a road as part of a development he can enter into an agreement under s.38 of the Highways Act 1980 with the highway authority. He agrees to build the road to “adoptable standard”, dedicates it and (usually) maintains it for a year to ensure no construction defects occur, following which the highway authority adopts it and becomes liable for its maintenance.
  • Creation by implied dedication – if it can be shown that the public have used a way for at least 20 years as of right (nec vi nec clam nec precario as in prescriptive private rights of way). The presumption can be defeated by evidence that the owner did not intend to dedicate the way to the public. This is most frequently done by putting a gate at one end which is closed periodically – usually once a year, often on Christmas Day or New Year’s Day – or by displaying a notice negating the implied intention to dedicate, eg “It is not intended to dedicate this way to the public pursuant to the Highways Act 1980”, or words to that effect.
  • Creation by Order – only relevant to footpaths and bridleways, using a “footpath creation order”.

Adoption

There are two methods of getting a highway adopted:

  • Notice under s.37 Highways Act 1980 – infrequently used.
  • Agreement under s.38 Highways Act 1980 – see “creation by dedication/agreement” above.

Who is the Highway Authority?

The identity of the Highway Authority depends on the nature of the road:

  • Secretary of State for Transport: Trunk roads and special roads (motorways) (managed on behalf of the Secretary of State by the Highways Agency)
  • Local Highway Authority*: All other highways

*Outside London: the local highway authority is the County Council (where there is one) or the Unitary Authority. In Greater London: Transport for London is the local highway authority in respect of “GLA Roads” and the relevant London Borough or City Corporation is the local highway authority for all other highways.

Works in the Highway

No-one has any right to carry out any works in or on a highway except:

  • The highway authority for the road (but see next section); or
  • A statutory undertaker (electricity, gas, water or telecommunications operator).

Agreements for Works in the Highway (s.278 Highways Act 1980)

Section 278 of the Highways Act 1980 provides a power for a highway authority to enter into an agreement with any person such that works to an existing highway are to be paid for by that person. The authority must be satisfied that the works will be of benefit to the public. This provision is widely used where new development necessitates highway works, eg putting in a new roundabout.

Section 278 is often used in conjunction with s.38 of the 1980 Act to cover both works in the existing highway and works to create new highway (eg by widening the road) and of course the new elements then need to be dedicated and adopted under s.38 in the way described above.

Footpaths and Bridleways

Footpaths and bridleways, being less obvious than roads per se, can cause problems where they cross a property, especially if that property is a development site. (In 2004 Madonna was involved in a celebrated case where she successfully applied to stop up a footpath which crossed the grounds of her house in Wiltshire on the basis of interference with her privacy.)

All footpaths and bridleways should appear on the “definitive map”, which all local highway authorities are required to maintain under the National Parks and Access to the Countryside Act 1949. A local search should disclose any footpaths that exist on or near the site concerned.

As noted above, the local highway authority has a statutory duty to keep the footpaths open and free of obstructions. 

City Walkway (City of London only)

In a misguided attempt to create a “city in the sky” in the 1960s, the City Corporation managed to get legislation passed in the form of the City of London (Various Powers) Act 1967, allowing them to require new development to provide parts of elevated walkways (usually at second storey level to allow for the passage of buses beneath bridges at that level). This was intended ultimately to form a pedestrian network throughout the square mile, allowing pedestrians to walk all over the City without coming into conflict with traffic. Various parts of the walkway were built piecemeal as new developments proceeded and parts of the network now exist all over the City – many of them leading nowhere because their completion depended on neighbouring buildings being developed. The idea of the network has now been abandoned. If a site contains such walkway it is often possible to get the City Corporation to rescind its City Walkway status – indeed various parts of the walkway are “earmarked” for rescission in the City’s development plan.

Stopping Up and Diversion of Highways

Vehicular roads

There are two possible ways to stop up or divert a vehicular road:

  • Application to the Magistrates Court by the highway authority under s.116 Highways Act 1980 on the ground that either the highway is “unnecessary” (stopping up) or “can be diverted so as to make it nearer or more commodious to the public” (diversion).
  • Application by a developer to the Secretary of State (outside Greater London) or the London Borough (in Greater London) under s.247 of the Town and Country Planning Act 1990. The Secretary of State (or as the case may be the London Borough) must be satisfied that the diversion/stopping up is “necessary in order to enable development to be carried out”. A planning permission for the development is a pre-requisite. 

Footpaths and bridleways

The procedure to stop up or divert a footpath or bridleway is as follows:

  • Stopping up order under s.118 Highways Act 1980 made by the local highway authority and confirmed by the Secretary of State on the ground that it is not needed for public use.
  • Diversion order under s.119 Highways Act 1980 made by the local highway authority and confirmed by the Secretary of State on the ground that the diversion is expedient in the interests of the owner, lessee or occupier of the land.