Highways and footpaths

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Declaratory relief of planning decisions

A declaratory judgment is a judgment identifying the rights, duties or obligations of one or more parties in a dispute. It is legally binding, but...

Grounds of appeal—introducing new evidence

Coronavirus (COVID-19): The guidance detailing normal practice set out in this Practice Note may be affected by measures concerning process and...

Planning conditions—the six tests

Coronavirus (COVID-19): This Practice Note contains guidance on subjects potentially impacted by the government’s response to the coronavirus...

Section 215 notice requiring maintenance of land

IntroductionThe purpose of section 215 of the Town and Country Planning Act 1990 (TCPA 1990) is to give a local planning authority (LPA) power to take...

Practice notes

Operational development

Control of developmentPursuant to section 57 of the Town and Country Planning Act 1990 (TCPA 1990), planning permission is required for ‘the carrying...

9th Nov

Practice notes

Judicial review time limits—extensions and urgent cases

When a public body receives a claim form for judicial review, the first step is to consider whether the claim has been brought in time. For further...

Produced in partnership with Morayo Fagborun Bennett of Hardwicke Chambers 9th Nov

Practice notes

Costs for judicial review—general principles

General rule on costs in judicial reviewThe general rule in relation to costs in judicial review, as in other proceedings, is that costs follow the...

Produced in partnership with Morayo Fagborun Bennett of Hardwicke Chambers 9th Nov

Practice notes

Material change of use

Control of developmentPursuant to section 57 of the Town and Country Planning Act 1990 (TCPA 1990), planning permission is required for ‘the carrying...

9th Nov

Practice notes

Oversailing

TrespassTrespass is the unlawful presence of a person on land in the possession of another. The ownership of land includes the airspace above it....

9th Nov

Practice notes

Introduction to retained EU law

This Practice Note provides an introduction to retained EU law, which is an entirely new legal concept introduced to UK domestic law in preparation...

9th Nov

Brexit

Practice notes

Defining the planning unit

Why is it important to establish the planning unit?Planning permission is required where there has been a material change of use (see Practice Note:...

9th Nov

Practice notes

Permission to appeal—the application

Coronavirus (COVID-19): The guidance detailing normal practice set out in this Practice Note may be affected by measures concerning process and...

9th Nov

Practice notes

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...

9th Nov

Practice notes

Keeping planning permission alive

Coronavirus (COVID-19): This Practice Note contains guidance on subjects potentially impacted by the government’s response to the coronavirus...

9th Nov

Practice notes

Overview of the EU legal system

Brexit: This Practice Note contains guidance on subjects impacted by the UK’s withdrawal from the EU. As of 31 January 2020 (exit day), the UK is no...

Produced in partnership with Laura Bolado 9th Nov

Brexit

Practice notes

Presumption in favour of sustainable development

Policy contextThe original version of the National Planning Policy Framework (2012 NPPF) was published on 27 March 2012, taking immediate effect. It...

9th Nov

Practice notes

Local Development Orders

What is a Local Development Order (LDO)?An LDO is a local development order, made at local authority level by a local planning authority (LPA). Once...

9th Nov

Practice notes

Purchase notices

What is a purchase notice?The purchase notice procedure provides landowners with a means of having land acquired by a local planning authority (LPA)...

9th Nov

Practice notes

Compulsory purchase—compensation

Coronavirus (COVID-19): This Practice Note contains guidance on subjects potentially impacted by the government’s response to the coronavirus outbreak...

Produced in partnership with Stephen Morgan of Landmark Chambers 9th Nov

Most recent Highways and footpaths content

Q&As

A developer is entering into an agreement under section 278 of the Highways Act 1980, pursuant to a condition under a planning permission. The works covered by the agreement are entirely within highway running along the application site. The developer is the owner of the application site, but the application site has charges against it. Should the mortgagee be party to the agreement?

Under section 278 of the Highways Act 1980 (HiA 1980), a highways authority can enter into an agreement with a developer to facilitate development on...

Produced in partnership with Emily Knowles of Sharpe Pritchard 3rd Nov

Practice notes

Public rights of way

Public rights of way (PROW) are highways that allow the public a legal right of passage. They have the same status and protection in law as highways...

29th Sep

Q&As

A council has served a notice under section 167 of the Highways Act 1980 on a landowner due to the owner's retaining wall to not being safe. The notice has now expired. As the retaining wall is old and made from bricks, does the council need to ensure the wall is safe to obviate the danger, or does it need to consider the material used for visual amenity purposes?

This Q&A assumes that there are various planning issues, which have not been dealt with in detail.It is the overarching duty of each Highway Authority...

Produced in partnership with Alastair Frew of Lodders Solicitors 29th Sep

Q&As

Can landowners use a road prior to its adoption as a public highway?

Adoption and the right to use a route are separate concepts, with the former connoting liability to maintain. (See: Part IV of the Highways Act 1980...

Produced in partnership with Christine Willmore of University of Bristol Law School 29th Sep

Q&As

The client is buying a property to develop. There is a gated access route through the car park at the property which is used by the public to access a park. It is unclear who installed the gate or when. The buyer is concerned that he will not be able to build over or block the access route if there are rights to use it. What should the buyer do to protect its position and allow the development to proceed?

This Q&A considers a potential development of land which may be subject to a public right of way.A right of way is a form of easement which allows a...

Produced in partnership with Georgia Whiting of 4 King’s Bench Walk 29th Sep

Q&As

Who is legally responsible for the removal of an obstruction or tipped materials from a public right of way? Is the landowner or local authority responsible for keeping the public right of way clear of obstructions? What authority (in terms of case law, legislation or guidance) supports this?

For most land, both the Environment Agency and the District Council have the power to require the occupier of land to remove any illegally deposited...

Produced in partnership with Rosalind Andrews of Harrison Clark Rickerbys 29th Sep

Q&As

If planning permission has been granted by a local planning authority which involves works being carried out on the publicly maintainable highway, can the local highway authority still refuse to enter into a Section 278 Agreement if it believes that the works will not benefit the public?

Section 278 Agreements provide for the carrying out of work within the existing adopted highway, and usually provide the Local Highway Authority’s...

Produced in partnership with Rosalind Andrews of Harrison Clark Rickerbys 29th Sep

Q&As

Are there any rights of way for pedestrians around/alongside security barriers, ie does sufficient space have to be provided for a safe crossing away from barriers?

The simple answer to this question is—no, provided that the security barrier is safe for pedestrian access.A security barrier is typically a gate,...

Produced in partnership with Alastair Frew of Lodders Solicitors 29th Sep

Q&As

If an unadopted highway has fallen into disrepair, what rights are open to an individual whose right to pass and repass over that highway has been restricted by the state of disrepair?

It is important to remember that ‘adoption’ and ‘dedication’ are two very different things; a highway is adopted, if the highway authority agrees to...

Produced in partnership with Alistair Frew of Lodders 29th Sep

Q&As

What is an attestation clause and which planning documents require one?

An attestation clause is a clause stating that a document has been executed by an individual in the presence of a witness or witnesses (ie the witness...

29th Sep

Q&As

What is the personal liability of a hotel for the highways maintainable at public expense?

This Q&A does not consider any occupier’s liability or health and safety obligations which may be imposed on a hotel operator.Once highways are...

29th Sep

Q&As

If a local authority requires an express deed of easement in conjunction with a section 38 agreement allowing the drainage of surface water from the section 38 roads onto the developer's adjacent land (the section 38 roads and the adjacent land being in the same title number) once those roads have been adopted, at what point does the local authority gain a sufficient interest in the section 38 roads (the dominant land) such that the deed of easement can be granted?

EasementsNo easement can exist without both an identifiable servient and dominant tenement and those two estates being in separate ownership, see...

29th Sep

Q&As

Is there any provision under section 38 of the Highways Act 1980 or elsewhere which requires a mortgagee to be party to a section 278 or section 38 agreement?

Agreements under section 278 of the Highways Act 1980 (HiA 1980) and agreements under HiA 1980, s 38 are very different from each other and thus need...

Produced in partnership with James Ryan of Carbon Law 29th Sep

Q&As

Can a highway authority extract a proportion of the development value of adjoining land from the landowner to secure a right of access on to the highway?

For the purpose of this Q&A, we have assumed that the public highway directly abuts the land of the developer/adjoining owner (adjoining land). If the...

29th Sep

Q&As

How can I remove a footpath from the definitive map and statement?

The definitive map is a legal record of public rights of way maintained by the highway authority. Together with the definitive statement, it provides...

29th Sep

Q&As

A public footpath runs along a sea wall which forms part of a farm. Does the vesting of the footpath pursuant to section 263 of the Highways Act 1980 prevent the farmer from grazing his cattle on that land?

Section 263 of the Highways Act 1980 (HiA 1980) provides that every highway maintainable at the public expense, vests in the authority of who is the...

29th Sep

Q&As

A piece of land being purchased gains access over land which is privately owned but has been dedicated as highway. Should the buyer seek an express grant of the right of way in case the highway is ever stopped up?

Highways can be stopped up if the area of highway is no longer needed or when the land is needed for a development to take place. When a road...

29th Sep

Q&As

Is there a statutory prohibition against assignment of a 38 Highways Act 1980 agreement that means parties cannot contract to allow assignment subject to consent? Also if it is possible to assign subject to consent is it implicit that such consent will not be unreasonably refused?

Agreements under section 38 of the Highways Act 1980 (HiA 1980) (known as section 38 agreements) are agreements between a local highway authority and...

Produced in partnership with Emily Knowles of Sharpe Pritchard 29th Sep

Q&As

How do you find out who owns a culvert located under a highway? Is a culvert under a road a highway drain? Does a highway authority own it/have power to grant rights to drain into it?

According to Environment Agency guidance on riparian ownership (EA guidance) p 31, a culvert is a covered channel or pipe designed to prevent the...

29th Sep

Q&As

Broadly, what is the process for applications under section 31(6) of the Highways Act 1980? Specifically, what level of protection is afforded and from when does that protection run?

Section 31(6) of the Highways Act 1980 (HiA 1980) states that:‘6) An owner of land may at any time deposit with the appropriate council—(a) a map of...

29th Sep