Is there unused highway land next to your property? Could you enclose the land into your property?
If there is unnecessary public highway adjacent to your property you should consider the option of applying to the local highway authority to extinguish the highway which will remove all public rights of way and enable such land to be privately managed and enclosed. The following information will help you assess whether you could apply for the extinguishment of highway land next to your property.
What is public highway?
A public highway is a legal right to the public to pass and repass over land. Whilst a right of passage is the primary public right, a highway also entitles the public to carry on any other reasonable activity.
The following are key principles that are relevant to the possible extinguishment of a public highway:
- a highway is a legal right over land. It does not connote freehold ownership of the land. The majority of the freehold on which there is highway maintainable at public expense are not owned by the highway authorities
- a freehold owner of land on which there are highway rights cannot obstruct or interfere with such public rights
- the legal maxim is ‘once a highway always a highway’ which means highways can only be extinguished by statutory power
- you cannot adverse possess a highway so as to claim ownership after 12 years
- there are no limitation periods on unlawful encroachments of a highway
How can public highway be extinguished?
There are several statutory powers which enable the extinguishment of public highway. The most relevant as it relates to extinguishing highway so as to enclose the land into the adjacent private property are:
Section 116 of the Highways Act 1980
A request can be made to the local highway authority under section 116 of the Highways Act asking the authority to make a formal application to the local magistrates’ Court for an order to extinguish public highway on the grounds such highway is unnecessary.
The powers of the local highway authority to make the application, and the powers of the local magistrates to make the extinguishing order, are discretionary but must be determined reasonably.
In considering whether a highway is unnecessary, the following are common issues:
- is the highway presently or recently used by the public (by means of passage i.e. use of highway as a car park is not a relevant consideration)
- are there safety reasons for the highway (e.g. visibility)
- are there any highway management purposes for the land (e.g. drainage, access)
- are there reasonable prospects of future need for the highway (e.g. road or footway widening)
- are there any amenity issues (e.g. irregularities, green spaces)
You should consider, before making any request to the authority, carrying out an informal consultation with local residents and interested parties (including any parish or town council or owners’ of apparatus in the highway (e.g. drainage pipes and utility cabling) so as to gauge whether there will be third party opposition. Assuming no public opposition, this will also help to strengthen and focus the reasons as to why the highway is unnecessary.
The authority will likely require you to pay its costs in making any application together with any costs for any resultant works to accommodate the extinguishment of highway. The application costs are commonly between £3,000-£5,000 plus any work costs. The works costs could include the diversion of any public utility apparatus in the extinguished highway. An application will likely take about 3-4 months to conclude.
Section 256 of the Highways Act 1980
This section allows the local highway authority to exchange, by agreement with a landowner, highway land (which they maintain) for new highway for the purposes of adjusting the highway boundary. The highway land would be extinguished upon such agreement taking effect. This statutory power is only relevant where you are offering land in exchange. The authority will likely require you to pay its costs arising from the agreement.
Section 247 of the Town and Country Planning Act 1990
The section allows you to directly apply to the Secretary of State for an order to extinguish any highway that is necessary so as to implement a planning permission. This application must be made before substantial completion of a development. Failure to make such application would result in unlawful encroachment of the highway and, save for removal of such encroachment, Section 116 would be the only remaining means to extinguish the highway encroached upon.
The grant of planning permission does not guarantee a successful application under this power. The Secretary of State will not re-open the planning merit of the permission but will assess the impact on the highway network as a result of any possible loss of highway. The impact on the safety and traffic management of the highway network will be significant factors for consideration in any application.
This option should be considered where planning permission would be required for the proposed development regardless of the highway rights on the land and where such development couldn’t be licenced or authorised on the highway. The more common example would be home extensions or improvements that will encroach upon existing highway.
Land Ownership Issues
It is important to note that a successful application for the extinguishment of highway under Section 116 or Section 247 does not pass to you the freehold interest in the land. The ownership of the land will remain with the owner as at the time of the extinguishment. Similarly, any private rights and covenants on the land will remain upon any extinguishment of the highway.
If you are not the owner then before proceeding with any application you should consider investigating title of the land and negotiating any purchase of the land.
If the highway land is unregistered then the legal presumption that landowners adjacent to a highway own up to the middle of such highway (unless there is evidence to the contrary) could apply. This presumption can apply even if your adjacent land is registered.
If you do not have ownership of the highway land at the time of extinguishment then any entitlement of adverse possession of the land will only start to accrue as at the time of extinguishment of the highway.
How we can help
If you need assistance or have questions over the possibility of extinguishing public highway so as to enclose such land into your property then Buckles Solicitors will be able to assist and assess your requirements.
