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Once a Highway, Always a Highway?

Once a Highway, Always a Highway?

The concept of what constitutes a highway was established long ago, when there were few written laws and local authorities were not in existence.

As far back as the twelfth and thirteenth centuries, English royal lawyers developed new doctrine to reverse a process that had undermined the status of highways. They sought to preserve the highways' utility and assert their connection to the king. The new doctrine allowed the royal government to take practical steps to clear roads of obstructions, dismantle illegal tolls, and require landholders to perform the necessary maintenance. By and large, this principle still remains today and the legal maxim ‘once a highway always a highway’ still holds true in most situations.

Highway rights can however be extinguished (stopped up) and this is most commonly done so by the secretary of State to facilitate new development. The term 'stopping up' means that once such an order is made, the highway land in question ceases to be a public highway, road, or footpath i.e., the highway rights are extinguished in law.

It is important to recognise however that the stopping up of highway land is subject to a separate process and falls outside of the granting of planning approval for development. If your development is reliant upon the stopping up of adopted highway land, it is key to consult with the relevant bodies at the earliest opportunity to gain their ‘in principle’ support for the proposals.

Once a stopping up order is successfully made, then the land is free of any Highway Authority control. Contrary to what most people believe however, the majority of highway land does not ‘belong’ to the local authority and it is the common law presumption that the subsoil of the area to be stopped up reverts back to the original landowners. If the land is not registered, then the legal assumption is that the land owners adjacent to the highway (known as the frontagers) own up to the middle of the highway.

If you are thinking of stopping up highway land to bring forward new development, it is always vital that these fundamental principles are fully  understood.

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