Guidance Notes on Highways

Many of us take for granted the Access which we have from our Property. But do we actually know what comprises the extent of the highway which we use everyday and who is responsible for its upkeep?

BACKGROUND

There is a common misconception with Land Registry Title Plans. They do not show the precise position of a Property’s boundaries. This is because our Land Registry System unlike our Continental counterparts is founded on the principle of “General Boundaries”, a point we referred to at 1.4 of our accompanying Title Report and in our accompanying Guidance Notes on Boundaries. The Land Registration Act 2002 states that a Title Register is only conclusive as to who owns the Land. It is not conclusive in terms of the extent of the land. Indeed the Title Plan which we include in the Documents states “this title plan shows the general position of boundaries: it does not show the exact line of boundaries”. Applying this statement in practice means that the Land Registry will not determine whether a Property includes a hedge or wall or ditch or runs along the centre of a wall or fence or its inner or outer face or how far it runs within or beyond it or whether or not the land registered includes the whole or any part of an adjoining road or stream. Such a statement means that the extent of a Property and the extent an abutting Highway will not be always clear as the Plan may suggest.   

WHO OWNS THE ACCESS-WAY AND WHAT IS ITS EXTENT?

This will depend on whether the Access-way is a Public Highway Maintained At The Public Expense. Each Highway Authority is obliged under Sections 36(6) and 36(7) of the Highway Act 1980 to have a list of the streets in their area and the different status for each street – eg public highway maintained at the public expense, public highway not maintained at the public expense, private road. Section 2.1 of the Local Authority Search will advise on the status of such access-way abutting the Property you are wishing to buy.  This information we will have then extrapolated and put in 2.4 of our Title Report namely whether or not the access-way is a Public Highway Maintained At The Public Expense. We have also provided you a Health Warning that Local Authority Plans showing the extent of the Public Highway cannot ever be regarded as conclusive. In some cases Local Authority Records have been lost and the Highway Plan is based on a best guess.

Where there is a Public Highway Maintained At The Public Expense, the Highway Authority (either a Unitary Authority or County Council) will own the surface of the road, the footings and foundations to the road and the airspace above to the extent of the height of vehicles that can be expected to use the road.  What most people do not realise is that they also ‘own’ the land below the footings and foundations comprising one half of the road. This is due to ‘the Ad Medum Filum Rule’ which says each landowner owns the sub soil up to the half way line of the road. This will never be shown on your Title Register for the reason that the Land Registry will only register the General Boundaries of a Property.

Arguments can and indeed do arise between Property Owners and a Highway Authority concerning where a Public Highway starts. The Law has developed what can be termed “Rebuttable Presumptions”. These include

  • When a Highway runs between fences or walls, the whole of the area between such fences and walls is Public Highway, provided it can be shown that the purpose of erecting such structures was to demarcate the road from private land. If the erecting of such structures were for other purposes then the Presumption will not apply. An example was in Hale v Norfolk County Council 2001
  • Here a Residential Property was set back from the road. A previous owner had erected a fence in front of the house a short distance from the road. The County Council argued that this fence was intended as a marker to show the extent of the Owner’s Land and that the land in front (“the Disputed Land”) the Owner was dedicating as Public Highway which the Council had accepted (see below). Mrs H placed stones on the Disputed Land and a chain link fence close to the road. The County Council sought their removal. On Appeal Mrs H won, because there was no evidence to provide that the owner of the Property had ever dedicated the Disputed Land- the burden of proof was on the County Council
  • Where a Highway passes between open land on either side, the highway is confined to the roadway itself
  • Where a Highway runs between ditches, there is a Presumption that the Highway does not include the ditches but belong to the Owners of the abutting land- Handscombe v Bedfordshire County Council 1938. The Presumption can be rebutted if it can be shown that the ditches were constructed to take surface water from the roadway. Where a ditch is culverted by the Highway Authority under its statutory powers, such act does NOT amount to the ditch becoming part of the public highway

Public Footpaths, Bridleways,  Restricted Byway, Byways Open To All Traffic

Every Local Authority is obliged to keep up to date a Definitive Map and Statement of all Public Rights of Way within its area. Such Map and Statement is continually evolving.

Section 2.2 of our Local Authority Search will answer whether there are any Public Footpaths, Bridleways or By Ways Open to all Traffic (BOAT)  Roads Used as Public Paths (RUPP) crossing or abutting the Property you wish to buy. We will have brought this information to your attention at Section 2.3 of our Title Report when advising you on the findings from the Local Authority Search.

A Footpath is a highway over which the Public have a right of way on foot only , being other than a footway- Section 336(1) Town and Country Planning Act 1990.

A Bridleway is a highway over which the Public have a right of way on foot and horse- Section 336 (1) Town and Country Planning Act 1980– in addition cyclists can use a Bridleway provided they give way to pedestrians and horseback riders.

A Restricted By-Way is a highway over which the Public has a right of way on foot, horse and by a nom- mechanically driven highway.

A By-Way Open To All Traffic is a highway over which the Public has a right of way on foot horse vehicle and all other kinds of traffic

A number of preliminary points under the Rights of Way Act 1990

  • A Footpath passing through a field must be a minimum of 1 meter
  • A Footpath passing around the edge of a field must be a minimum of 1.5 meters
  • A Bridleway passing through a field must be a minimum of 2 meters
  • There is no minimum width for a Bridleway passing around the edge of a field
  • A By Way Open to all Traffic must have a minimum width of 3 meters

How do We Avoid Disputes With a Highway Authority?

Under Section 53 of the Wildlife and Countrywide Act 1981 a Highway Authority (either as County Council or Unitary Authority) is obliged to keep and update a Definitive Map and Statement showing all Public Footpaths, Bridleways, Restricted Ways or By-ways Open to all Traffic. Applications can be made for the modification of the Map and Statement. Section 53(2) states that the Map is conclusive unless and until there is a review.

A major area for dispute is whether a Landowner has dedicated land for public highway         (road, public footpath, public bridleway) and this has been accepted by the Public under Section 31 of the Highway Act 1980. Clearly if a Landowner has entered into an express dedication agreement with a local authority signed by both landowner and local authority (who represent the Public) provided an accurate plan with measurements is used, then there should not be a dispute. Even a short note can in certain circumstances amount to dedication and acceptance. Only the Owner of the Freehold of Land can dedicate land for Public Use.

Disputes arise where there is no express dedication and acceptance. It works as follows

  • Members of the Public show that they have used “as of right” (without force, without secrecy and without permission) land for passage either on foot or with vehicle or on horse back or leading a horse for a continuous period of at least 20 years- the act of implied acceptance
  • The land owner has acquiesced in such conduct by the public- the act of implied dedication. Acquiescence means no more than the landowner tolerating such activity which he is aware of- R v Oxfordshire County Council ex parte Sunningwell 1998

A Landowner who does not want to be seen to dedicate land as Public Highways needs to take some positive steps to show non-dedication and that a reasonable user of the highway would have been aware that the landowner was not dedicating land as public highway- Section 31(3) Highways Act 1980. The traditional approach of a landowner locking a gate once a year to prevent user to rebut dedication is no longer good law, IF the public would not have used the path on such a day. This was seen in the case of Ali v Secretary of State for Environment Food and Rural Affairs 2015– the case involved an alleyway to shops and business premises. The owner of the alleyway locked the gates to prevent user over the Christmas Holiday Period. Such an act did not amount to a rebuttal of the presumption of dedication because users would not have used it anyway as the shops and businesses were closed. An intention not to dedicate their land must be communicated to the Public clearly by overt acts. This derives from the House of Lords in two 2007 landmark decisions (Applications of Godmanchester Town Council and Drain) concerning the application of Section 31 (dedication and acceptance). The Landowner’s Intention not to dedicate must be clearly communicated so that a reasonable user of the way would have understood that the way was not for public use. The test is Objective (what would a reasonable user have thought)- the subjective views of the Landowners or the Users are wholly irrelevant. In these cases the Applicants had applied to their County Council for a modification of the Definitive Map and Statement to add a public right of way. In each case the Landowners challenged the applications- Godmanchester- the landowner wrote to the Council complaining about illegal acts of trespass, whilst in Drain, the landowner complained that the tenant who occupied the land had failed to prevent the use for access in breach of the tenancy agreement. In neither case were such actions (which the landowners argued were action to rebut implied dedication) adequate as they would NOT HAVE BEEN KNOWN to a reasonable user of the way. In both cases the Applicants succeeded in having the Definitive Map and Statement modified to include the ways.

One form of action exists under The Highways Act 1980 Section 31(6) as amended by The Growth and Infrastructure Act 2013 where Landowners can deposit a Map of their Land and the next day an accompanying Statement identifying what if any Public Footpaths, Bridleways, Restricted By-Ways or Byways Open To All Traffic cross their land and that no other acts of dedication will take place. Such a statement lasts for 20 years

Another form of Overt Act can be the placing of prominent signs – for example

  • “Permissive Right of Way”- landowner is giving permission which can be revoked at any time
  • “No Right of Way”- clear statement that the way cannot be used

The test is whether a reasonable user of the way would have understood that the landowner intended to show that the landowner had no intention of dedicating the way for public use. A Landowner who erects such signage should also as a matter of good practice advise the Highway Authority just in case the sign is pulled down or defaced

Other areas where disputes can arise with Highways are

  • Public Path Creation Orders- Section 26 of the Highways Act 1980– here a Highway Authority may make such an Order if it considers such path or bridleway to be necessary. Where an objection(s) is made the decision lies with the Secretary of State for Communities, Housing and Local Government
  • Upkeep of Public Highways– The Common Law Principle is that a Highway Authority must keep a Public Highway safe and fit for “ordinary traffic”. If the type of ordinary traffic alters so do the standards of upkeep. Section 58 of the Highways Act 1980 confers a Statutory Defence to claims brought against a Highway Authority. It must show that it has taken such care as is reasonable to secure that section of highway is not dangerous to the Public. Courts will take account of
  • the character of the highway and the traffic which uses it
  • the standard of maintenance provided having regard to the character
  • the state and repair that a reasonable person may expect
  • whether the Highway Authority knew or could have been expected to know of the dangers
  • Where repairs could not reasonably be expected to have been carried out, what warning notices had been displayed
  • Upkeep of Retaining Walls Abutting a Highway– unless the retaining wall is supporting the Highway, the owner of the Land on which the wall exists is responsible for its maintenance and repair

General Legal Points with Highways

  1. It is not a criminal offence to drive over a pavement to get to access to your Property- St Mary Newington Vestry and Jacobs 1871. However if you wish to lower the kerb to afford access then you will be subject to the following requirements
  • Where the kerb abuts a Classified Road (A B or C Road) you will need Planning Permission
  • Where the kerb abuts a non-classified road, a Vehicular Crossing Agreement and a Permit to Dig from the Highway Authority with the works carried out by an Approved Contractor
  1. Section 34 of the Road Traffic Act 1988– it is not a criminal offence to drive mechanically propelled vehicle on any land within 15 yards of a road for the purpose of parking on your land
  2. Stopping Up Orders– The starting principle is “Once a Highway , Always a Highway”. However  Statutory Powers have been introduced to enable Roads and Footpaths to be “stopped up” or “diverted”. Below is a very brief coverage of this Issue.
  • Roads- Section 247 of the Town and Country Planning Act 1990
  • Footpaths , Bridleways, Restricted By-Ways, By-ways Open to All Traffuc- section 257 of the Town & Country Planning Act 1990

Under each section an Order can be made by the Secretary of State (In London decision can be taken by a London Borough Council)- where an application to stop up or divert is made- where there are objections normally a Public Enquiry is held. The Principles to follow are based on a decision of Vasilou v Secretary of State for Transport 1991 where there are two inter-dependent  tests

  • The Necessity Test
  1. A Planning Permission exists or will be granted for development
  2. It is necessary to authorise the stopping up or diversion order of the Public Right of Way to enable its implementation
  • The Merits Test- this involves the weighing up of any significant disadvantages or losses flowing from the Order to the general public and or individual land owners as against the advantages to the Public generally by the permission being implemented

Where a Planning Permission has been granted by a Local Planning Authority which contains a Condition requiring the Stopping up or Diverting of an existing Public Path, Bridleway, Restricted By-Way or Byway Open To All Traffic, a Local Authority may make such an Order subject to it being advertised and asking if there are any objections. If there are none, it can confirm the Order. Conversely where Objections are received , the issue must be decided by the Secretary of State once an Inquiry or an Opportunity to Give Evidence in writing takes place.

Where a Stopping Up Order is made the land the subject to the order reverts to the landowner, on the basis that the landowner prior to such order still owned the sub soil and the air above

August 2018

Malcolm DR Buck- (Solicitor)