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Who Owns the Road?

Who Owns the Road?

As discussed in our recent article ‘Once a Highway, Always a Highway?’ understanding the fundamentals of what constitutes a ‘highway’ and the process of removing highway rights can be critical to new development.

Yet not all roads are highways and not all highways are owned by the local authority in which they are located.

What are Highways?

Colloquially, we have a bad habit of referring to any road or street as ‘highway’; however, in official terms the highway is a very specific animal and one that has no statutory definition. S.328 of the Highways Act 1980 defines highways as ‘the whole or a part of a highway other than a ferry or waterway and includes bridges and tunnels which the highway passes over or through’, a circular definition which does little to clear the mist. Perhaps because of this it is subject to misconception. Planners and policy makers must rely on common law, which provides the most cited definition of highway as ‘a way over which members of the public have a right to pass and repass’.

Myth: The highway is a drivable road or street.

Fact: Footpaths and verges can be considered highway

On that basis, ‘highways’ are not always physical infrastructure but the formal status for any route or link.

The adoption process is also not necessarily the same as sale or transfer of ownership. Most highway land is not owned by the local authority but is ‘adopted’, and even in the case of adopted highway, the vested ownership that is transferred is only the minimum extent of soil and surface required for the way to function as highway and does not include the entirety of the freehold ownership. In short, all the Highways Authority ‘owns’ in most cases is the right to surface and re-surface the highway – and perhaps to install drains below it. 

Myth: Adopted highway is owned by the local highway authority.

Fact: Adopted highway may remain in private ownership.

Adoption.

Highway is adopted for several reasons, not limited to:

  • The landowner has determined that they are unable or unwilling, or lack the authority to maintain or control the road/way;
  • Fragmented land ownership across multiple small properties that cannot or will not coordinate, or lack the authority to maintain or control the road/way;
  • Sensitive or strategic infrastructure, the maintenance and control of which is crucial to the operation of the wider network.
  • Historic adoption or other adoption of necessity, such as circumstances where the rightful landowner cannot be identified and/or the land is unregistered.

The key words above are ‘maintenance’ and ‘control’. It is therefore critical at the earliest stages of development to understand the extent of the public highway boundary around and within your landownership. If the road is adopted, ownership alone not does authorise landowners to maintain, change, or control the road.

 

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by Sarah Chapman

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London Road and Footway 01