Real Estate Concepts by Unknown

Author:Unknown
Language: eng
Format: epub
ISBN: 978-1-135-08442-4
Publisher: Taylor & Francis (CAM)

10.14 Highways

Key terms: passage; stopping up; adoption; privately maintained

A highway is the name for any piece of land over which the public has a right to pass and re-pass. They are sometimes referred to as ‘public highways’ but the word public is superfluous in that expression.

It is obviously very important for anyone dealing with the sale, lease, development or valuation of land to identify whether or not the land can be accessed directly from the highway. This information can be obtained from the highway authority (Highways Agency for motorways and trunk roads or the county or unitary authority in all other cases) and is part of the enquiries included in the Local Search which is routinely carried out in residential and commercial conveyancing.

Some highways pass over private land and are not maintainable at public expense. In most cases highways are maintainable at public expense either because they were created before 1836 or adopted since then. When a developer is constructing a new scheme they will normally enter into a Section 38 Agreement under the Highways Act 1980 under which the new roads are constructed to the highway authority’s specification, maintained for a year after completion and then adopted by the highway authority. The interest of the highway authority in a highway maintainable at public expense is in ‘the top two spits of the road’ (Tithe Redemption Commission v Runcorn Urban District Council (1954) Ch 383) the subsoil of the road belongs to the adjoining owners; it is a rebuttable presumption that they own the land up to the centre of the highway.

It is a criminal offence to obstruct the highway in a way that endangers the use of it (section 137 Highways Act 1980). In order to allow property owners and developers the opportunity to maintain and enhance land a number of activities are regulated by licensing; these include skips, scaffolding, tables and chairs licences.

Highways can be created by the highway authority or by the dedication of the route by the landowner and acceptance by the public (this only relates to non-vehicular use). Dedication and acceptance can arise when the public has used a route for 20 years or longer without consent and as if they had the right to be there (section 31(1) Highways Act 1980).

When a new development is going to have a significant impact on the existing highway network a developer can be required to carry out or make a financial contribution towards off-site highway works. ‘Once a highway always a highway’ is an established legal maxim. However, it is possible to divert or stop up (extinguish) a highway under the rules contained in the Town and Country Planning Act 1990 and Highways Act 1980 where there is an equally convenient route or it is necessary to allow development to proceed.

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