How do streets, or more specifically – highways, come into existence? Who maintains them? And, what say does the public have? This week’s post is a brief run around the law.
By far the easiest way to create a new highway is for it to be built by a developer and for the local highway authority to ‘adopt’ it by agreement. In other words, the developer (or land owner) and the authority will enter into a legal agreement which will set out various terms and conditions to be met (on both sides) which will lead to the new road/ street being taken over.
The agreement is made under S38 of the Highways Act 1980
and it can be as complicated or as simple as both parties agree. It is usual for specification of the new highway to be agreed (structural design, surfacing, drainage, lighting etc) normally with drawings, inspections of the work being undertaken by the highway authority, the issuing of certificates of completion, maintenance periods etc.
It can equally be applied to an existing road where the highway authority is satisfied that the quality is good enough for adoption (sometimes intrusive investigation is needed). I should point out that the law in Scotland and Northern Ireland is different, so please forgive me as I simply don’t have experience of the process there. There is a Scottish guide here
and Northern Ireland guide here
A ‘commuted sum’ can form part of the agreement which provides money up front to be invested in future maintenance of the new highway (either ring fenced, or more usually, generally). There will also normally be a cash deposit or bond which the highway authority can access if a developer goes bust and the works need to be completed (which means that any residents moving in don’t have to pick up the bill).
Contrary to popular belief, the highway authority doesn’t take ownership of the land, just the fabric of the new highway. Put simply, a highway is a legal (and often physical) veneer over land which affords the public to pass and repass (subject to any prevailing restrictions). There is case law on how deep a highway goes into the ground and there is no one answer. It’s generally taken as what is necessary and so could be a few metres down to include a sewer (as utilities have highway rights) or it could have no depth at all. A railway tunnel, by contrast, wouldn’t be within the highway, even if shallow. All good fun!
The approach and policy within each highway authority does vary, but the basic processes are similar. S38 is by far the best way to deal with it because the other ways of establishing a highway can often be a complete pain. Highway authorities do not need to adopt anything they don’t want and it’s difficult to talk about policy in general.
If we take a general approach of something looking like a highway, operating like a highway and being used like a highway, then it is often the case that it is a highway. At least if this has gone on for at least 20 years. S31 of the Highways Act 1980
essentially provides for such a situation, although it’s a little more than someone saying “it’s a highway”.
The problem is that the highway authority doesn’t go around looking for things to designate as highways and so this ’20 year rule’ only ever gets tested if there is a dispute and the highway authority has to adjudicate. In addition, S66 of the Natural Environment and Rural Communities Act 2006
altered the Highways Act to remove the ability of S31 to apply to the use of mechanically-propelled vehicles to establish a ‘way’, although than a 20 year period starting before 2006 (so it will an obsolete clause by 2026). The term ‘mechanically propelled vehicles’ does not include pedal cycles and e-assist cycles.
In general terms, the process gets kicked off when a route gets blocked by someone and someone else who has been using it complains to the highway authority – the issue has been called into question and the 20 years will now stem from the date of the complaint. The complainant can then be invited to provide evidence that the route has been open for an uninterrupted period – and that can be difficult for individuals of course.
The local authority can write to frontagers (those with property fronting the way) to try and gain witness statements and of course, there may be historic photographs which can help test the assertion. The final position may well be down to tracking down the actual owner of the land to see if there was any declaration or other evidence that the land was or wasn’t intended to be used as a highway. It’s often a process which can drag on for a very long time and it’s potentially costly unless the evidence is clear cut. Negotiation and agreement is always the easiest way forward.
In order to protect their position, landowners can (and should) lodge a declaration with the highway authority that the ‘way’ is not intended to become a public highway. They would submit a map and a statement explaining that the way is not intended to become a highway and this information is held ‘on deposit’ as part of the ‘highways register’ which is the record of highway information in an area. They can equally decide that the way is to become a highway and submit a declaration to ‘dedicate’ it as such. It doesn’t mean the highway authority undertakes any maintenance, just that the public get a right to use it.
A landowner can also regularly block the route (using gate for example) or erect appropriate signage to explain that the way is not a public right of way. Many landowners don’t realise that the law is here and this does lead to tensions where they suddenly close something off which people have been using. My personal view is that highway authorities would be better taking a proactive approach in looking at what is happening in their area and looking to secure routes which serve public amenity as highways.
It doesn’t necessarily follow that a highway becomes maintainable ‘at public expense’, save for the S38 process. A highway exists as a legal veneer over land and there are countless examples where the residents/ frontagers and/ or landowners maintain a highway over which there is full public access. The highway authority can impose restrictions (parking and traffic) over these highways as they would on one maintained by them.
Above is an image of a road maintained by the residents, but on which the highway authority controls parking. A restricted parking zone has been chosen because it’s virtually impossible to paint yellow lines and parking bays on the road which is little more than a track!
There are other (more complicated) processes which I won’t cover here as they are a little more obscure, but I will mention S228 of the Highways Act 1980 which is a great wheeze. It’s often used when there is no record of a landowner, but the highway authority wants something to become a highway after works are undertaken (by the highway authority) to ‘improve’ the way. A simple site notice gives a month for people with interest in the land to object, although if there are relevant objections, it could get bogged down in the magistrates court.
S228 can also be used if the landowners are known, but as with above, if there is hostility to the way becoming a highway, then the process is fraught.
I probably shouldn’t have to say it, but I’m not a lawyer and as with design issues, you should seek your own independent professional advice. Highway law can be a minefield and the Highways Act in particular is often changed by other legislation. The best advice I can give is that where possible, get things done by agreement and any processes will then flow smoothly!