Highways—ownership and creation

The following Planning practice note provides comprehensive and up to date legal information covering:

  • Highways—ownership and creation
  • Meaning of ‘highway’
  • Right of passage
  • Classes of highway
  • Ownership of highway
  • Non-publicly maintainable highways
  • Highway ownership cannot be abandoned or acquired by adverse possession
  • Creation of highways
  • Public path creation agreements
  • Public path creation orders
  • More...

Highways—ownership and creation

Meaning of ‘highway’

In the broadest sense, a highway is a way (ie a defined route, such as a road, bridleway or footpath) over which the public have the right to pass and re-pass. The terms ‘highway’ and ‘public right of way’ are often used interchangeably, although the term ‘highway’ is more commonly used to describe the physical route rather than the right itself. For example, a way used by motor vehicles would usually be called a ‘highway’ rather than a ‘right of way’.

Right of passage

The legal consequence of a route being a highway is that the public have a right to pass and repass along the route. The public’s right to use a highway may be restricted according to the type of highway, eg footpaths and pavements (on-foot); bridleways (horseback), or vehicular roads (with or without vehicles).

Classes of highway

There are three main categories of highway:

  1. a carriageway, including a byway open to all traffic (for use on foot, horse, cycle, motorised and non-motorised vehicles)

  2. a bridleway (for use on foot, horse and cycle), and

  3. a footpath (for use on foot and mobility vehicles)

The definitive map also includes the category of restricted byways (for use on foot, horse, cycle, horse drawn vehicle or 'non-mechanically propelled vehicle'). See Practice Note: Public rights of way.

Ownership of highway

Several interests can exist in the same piece of

highway land. Highway land may belong the highway authority or a private owner.

The identity of the highway authority depends on the nature of the road:

  1. the Secretary of State for Transport is the highway authority for trunk roads and special roads (motorways). These are managed by the Highways Agency on the Secretary of State’s behalf

  2. the local highway authority is the highway authority for all other highways. Outside London, this is the county council (where there is one) or the unitary authority. In Greater London, this is Transport for London in respect of ‘GLA Roads’ or the relevant London Borough or City Corporation for all other highways

Non-publicly maintainable highways

If a highway is not publicly maintainable, the surface and the sub-soil vest in the landowner. With modern developments, the freeholder of the subsoil will be registered as its proprietor at HM Land Registry.

Where title to the road is unregistered, ownership can be difficult to prove. There is a presumption of ownership of the subsoil under the highway up to mid-point. Whether the land with highway frontage is registered or unregistered, the interest in the highway will be presumed to pass from owner to owner. Mere boundary plans or quoted measurements will not defeat the presumption. More compelling evidence to the contrary, however, can defeat it. Therefore, it is almost impossible to say categorically that the presumption is true, since there could always be an historic unregistered interest. This issue is particularly important in the City of London, where the Corporation enjoys historic rights (dating back to 1638) to a number of 'Charter Streets'. The most significant practical effect is that the Corporation can often defeat a claim to adverse possession or to a prescriptive easement by showing that vaults projecting beneath the affected streets were constructed with permission, evidenced by written licences.

In new developments, the developer may retain the road until it is adopted by the highway authority.

The landowner’s legal interest in the highway is subject to the right of passage of members of the public and the rights of control vested in the highway authority, as well as any restrictions on use, such as a restriction on construction without the authority’s approval.

Highway ownership cannot be abandoned or acquired by adverse possession

A long-established principle states that 'once a highway, always a highway'. This means that highways cannot be abandoned. Also, where a building has inadvertently been built partly on the route of a highway, it remains an obstruction and no amount of adverse possession or limitation period will make it lawful. The highway authority’s title to the highway cannot be extinguished by adverse possession, nor can a squatter extinguish the public’s right to use the highway. A squatter could only acquire the title of the owner whom they have dispossessed and thus acquire land subject to existing public rights of way. It is immaterial that the public can use the highway without the need to pass over the relevant land.

Creation of highways

Highways can be created by statute or by dedication and acceptance between the landowner and highway authority. The Highways Act 1980, Pt III (HiA 1980) contains a variety of powers for the creation of highways. The highway authority can acquire land by agreement or compulsory acquisition for highway purposes. See Practice Notes: Compulsory purchase—orders and Creation of highways.

Public path creation agreements

Footpaths, bridleways and restricted byways can be created by agreement between the landowner and the local authority. The dedication can be subject to limitations or conditions and may require payments to the landowner.

Public path creation orders

HiA 1980, s 26 gives powers to unitary authorities, district and county councils, National Park authorities, London borough councils and the Common Council to make orders for the creation of footpaths, bridleways and restricted byways. The council must consider that there is need for the footpath, bridleway or restricted byway over land in their area and that it is expedient to make the order, having regard to:

  1. the extent to which the path or way would add to the convenience or enjoyment of a substantial section of the public, or to the convenience of residents in the area, and

  2. the effect which the creation of the path or way would have on the rights of persons interested in the land, taking into account compensation provisions

The procedure for making the order is set out in the HiA 1980, Sch 6. The council must consult with other local authorities in the area. The order may be subject to conditions and limitations.

Compensation may be payable to the landowner if the value of their land is depreciated, or they suffer damage or disturbance to their enjoyment of the land, as a result of the order coming into effect.

Express dedication of highway

A landowner can serve a highway authority with notice of its intention to dedicate a road as highway maintainable at the public expense.

However, highways are most commonly expressly created through a dedication agreement under HiA 1980, s 38. This formalises the dedication by the landowner and the highway authority accepts it on behalf of the public. It also accepts responsibility for its maintenance at public expense. A s 38 agreement includes specifications and a maintenance period by the landowner so that the highway authority can be sure that the highway has been properly constructed. The cost of the works is usually covered by a bond to ensure that the highway authority has the funds to finish the works in the event of default. See: Practice Note Highways—adoption agreements and Precedent s 38 agreement.

When deciding whether to dedicate a highway, the decision maker must take into consideration any map, plan or history of the locality or other relevant document and give it such weight as is justified by the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled, and the custody in which it has been kept and from which it is produced.

The dedication of the way must be to the public at large, not to a specific class of persons.

Presumed dedication of highway

HiA 1980, s 31 provides for a ‘presumption of dedication’ to the public to be raised where a way has been enjoyed ‘as of right’, without interruption from the landowner, for at least 20 years. Use ‘as of right’ is use that is nec vi, nec clam, nec precario (without force, not in secret, and not on the basis of any permission).

A landowner can prevent presumed dedication by eg:

  1. locking gates

  2. putting up notices saying that no dedication is intended, and/or

  3. putting up signs saying that public use is expressly permitted (use cannot then be 'as of right', so there can be no presumed dedication)

These measures can be effective where the landowner's estate can effectually be monitored and managed. For large or scattered estates, monitoring all possible routes and uses can be impractical. For those cases, HiA 1980, s 31(6) allows landowners to submit statutory declarations acknowledging the existence of certain public rights of way across their land and preventing new public rights being created by 'presumed dedication'.

The mechanism does not prevent the creation of rights of way based on 20 years' use where that period had built up before submission of the landowner's statutory declaration, nor of rights of way whose existence can be proved by reference to historical documentation.

The s 31 procedure comprises the following:

  1. the landowner sends to the highways authority a statement identifying the relevant land and detailing any rights of way that are acknowledged to exist on that land. That statement must be accompanied by a plan at a scale of not less than 6 inches to the mile (1:10000 or larger) showing the land and the acknowledged public rights of way. The plan must be signed and dated by the landowner

  2. the landowner then submits a statutory declaration to the highways authority confirming the previous statement or acknowledging any changes or additions to the rights of way over the land. The statutory declaration confirms that there are no other public rights of way over the land shown on the plan

A new statutory declaration needs to be submitted to the highway authority not more than the 'relevant number of years' after the date of the previous submission for the process to remain valid, ie for new public rights of way to be created by presumed dedication.

HiA 1980, s 31(6A) and (6B) (as amended by the Growth and Infrastructure Act 2013) provide that the 'relevant number of years' is:

  1. 20 years, where the land is in England, and

  2. ten years, where the land is in Wales

The appropriate highways authority must keep a register containing information about maps and statements deposited and declarations lodged with the authority, which must be available for inspection free of charge at all reasonable hours.

In an appeal decision relating to land at Wharton Park, Durham, the inspector concluded that a claimed use of paths on land held under the Public Health Act 1875 and the Open Spaces Act 1906 was ‘by right’ and not ‘as of right’. Therefore the long use could not qualify for the purposes of establishing a public right of way under HiA 1980, s 31. This appeal decision confirms that where land is held under statute for the purpose of public use or enjoyment, a presumption of dedication as a highway will not arise. If land is held on a statutory basis, the local authority would not be able to exclude public use of such paths and therefore the issue of whether it can expressly permit use of the land becomes irrelevant. See Planning analysis: Use of paths under statutory permission was ‘by right’ (Order Ref: FPS/X1355/7/4M).

Adoption of private street after execution of street works

Where street works have been carried out by a highway authority or a private landowner, the highway authority can give notice under HiA 1980, s 228 that the road is to become adopted highway. The s 228 notice states that unless objections are received from the owner of the land, the highway in question will become maintainable at public expense one month after the date of the notice. If the landowner objects, the highway authority can apply to the magistrates' court for an order declaring that the street is adopted highway. An inspection fee is payable in the same way as for s 38 agreements.

This power can be used where the identity of the landowner is unknown and so a section 38 agreement cannot be used.

See: Notice declaring street to be highway maintainable at the public expense following street works.

HiA 1980, ss 62 and 278 apply to any parts of the approved road works located within the boundaries of existing publicly maintainable highways. Under normal circumstances, the highway authority will, after executing the agreement, authorise the developer to carry out such works subject to approving the contractor and programme of works. A s 278 agreement covers highways that require improvements that will have a significant effect on the day-to-day operation of the public highway during or following the construction of the works (eg the construction of a roundabout or installation of traffic signal controls at a junction). A bond and inspection fee is payable as with s 38 agreements. See: Practice Notes Negotiating a s 278 agreement—the developer’s perspective and Negotiating a s 278 agreement—the Highway Agency's perspective and Precedent: Precedent s 278 agreement.

Duty to maintain highway

Where a highway existed before 31 August

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