Unregistered land in unknown ownership can cause a headache on development and the extent of the issue will often depend upon what the land is needed for.

The problem

In some cases the issue can be solved by defective title indemnity insurance. In other cases, it is more critical. An area of unregistered land between the adopted highway boundary and the site boundary could mean that there is no lawful access from the site to the highway unless a right of access across that unregistered land can be established.

In such cases if the right of access cannot be established or if it would be insufficient to serve the site once developed, then having the unregistered land adopted as public highway can solve the problem completely.

Where land is not already being used as public highway, the usual route to adoption is for the landowner to enter into an agreement with the highway authority to dedicate the land as highway pursuant to Section 38 of the Highways Act 1980. However where there is no known owner this is impossible but section 228 of the Highways Act 1980 provides an option to overcome this issue. This section empowers a highway authority to adopt street works on a private street. It is important to note that this relates to the adoption of works to an existing private street although this can be overcome in practice by creating a private street by undertaking the works.

The process

It is unusual for section 228 works to be done in isolation. Instead, adoption by this means is usually achieved by the works being done in conjunction with section 38 and/or section 278 works, so that they can all be covered in one legal agreement. By this means, the highway authority can be sure that it is happy with the design and that it has adequate inspection rights to ensure that all works will be carried out to an adoptable standard.

Once the highway works are completed, a separate process is followed for any section 228 works (whether or not they have been done in conjunction with section 38/278 works) to effect their adoption. On completion of the works, the highway authority has to post a notice on site explaining its intention to adopt the works as part of the public highway. If there are no objections within one month, the works become part of the highway. If there are any objections, the matter may need to be resolved by the Magistrates Court.

There are a number of points to note if the section 228 adoption process is to be followed.

  • The use of this power by the local highway authority is discretionary. However, if it concerns a relatively small area of land which forms part of a wider scheme of access works the authority will often agree to use it;
  • The highway authority is likely to require an indemnity policy to be sure that it is protection should any potential claim against it or liability arise as a result of the adoption;
  • The highways authority may insist on building a maintenance period into the section 228 process. Although the section 228 works technically fall outside of the normal certification procedure for section 38 works, the highway authority will want to inspect them before starting the adoption process and will want the developer to take financial responsibility.

Comment 

Adoption by means of the section 228 process entails a commercial risk because it requires extensive works to be undertaken before a developer can know for certain that the adoption will be approved. However, if there is no known owner of the land, then objections are unlikely and this can prove to be a very effective means of circumventing an otherwise insurmountable problem.