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Recovery of costs under a contractual clause

Any new development ultimately needs to benefit from adequate access and servicing rights from the nearest public highway. It sounds simple but this is one of the most common problems that face new and existing developments.

The term ‘highway’ has no specific statutory definition. The Highways Act 1980 suggests that a highway is ‘the whole or part of the highway, other than a ferry or waterway’. Common law rules of interpretation instead apply through case law. Generally it is accepted that a highway is defined as a way over which the public have rights of passage, but defining the precise extent of a highway and in turn its ownership is of clear importance to developers, landowners and local authorities alike.

What rights exist to pass across the highway, what repair and maintenance obligations apply to the use of the highway, can they be enforced and against whom, can services be laid in the highway, is the highway adopted and does it immediately abut a proposed development? Is the adjoining road to a development adopted or registered land? If neither – could the ‘ad medium filum viae’ rule apply – rebuttable presumption that an owner of land abutting a private highway will own up to the centre of the highway in the absence of any contrary evidence of title. These are just some initial questions to consider.

Highways can be created by ‘dedication’. The Highways Act 1980 has a statutory procedure that can be followed (see below), but also sets out ‘deemed dedication’ provisions (section 31) where if it can be proven there has been 20 years ‘as of right’ use without interruption from the landowner then the highway will be deemed ‘dedicated’ (see also the case of R (on the application of Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs (and others) [2007] UKHL.) There are also other provisions contained in the right to roam provisions of the Countryside and Rights of Way Act 2000, and also The Natural Environment and Rural Communities Act 2006.

Once a highway is ‘dedicated’ the public can use it at all times and without charge. Actual ownership of the land is not affected, but dedication creates a right to use the surface. s263 Highways Act 1980 vests the surface of the highway and the necessary amount of airspace above and soil below it (described as the ‘zone of ordinary use’ in London Borough of Southwark v Transport for London [2018] UKSC 63 for the authority to perform its statutory functions). Lord Denning also famously described the depth of the highway as the ‘top 2 spits’ in Tithe Redemption Commission v Runcorn [1954] 1 All ER 653.

Formal ‘adoption’ of a road is the process by which the state/ public authority takes over responsibility for maintaining and repairing a highway. Various different bodies can comprise the relevant highway authority eg Secretary of State for Transport, County or Metropolitan Borough Councils, Transport for London.

The most common way for a highway to be adopted is utilising s38 Highways Act 1980. A developer enters into an agreement with the local authority to:

• Build the road and then dedicate it as a highway;
• Maintain the road for 12 months after completion and deal with any defects;
• Pay a financial contribution and/ or complete a financial bond.

The authority will then adopt the highway at completion of the process.
For new developments it is important to remember that such agreements are personal to the developer, and therefore any downstream plot sale agreements will need to contain the necessary contractual obligations for adoption since the plot owners will be relying on the developer and the Highways Authority agreeing the road is properly completed and will be adopted.

Developers also have the ability to serve notice on a local authority requiring adoption under s37 Highways Act 1980. If the authority objects matters are referred to the magistrates’ courts.

s228 Highways Act 1980 provides a useful tool for developers keen to have an existing roadway adopted as part of new development works. Conditions apply but once a notice has been displayed by the relevant street works authority then if there are no objections by the relevant landowners within 1 month from the erection of the notice the street will become an adopted highway.

Development agreements often place obligations on developers to construct roads to ‘adoptable standards’. The ‘Manual for Streets’ published by the DoT provides the relevant guidance, but each road to be adopted must reach the necessary standard approved by the Highways Authority. The Manual sets out minimum width requirements. Other considerations apply – it is necessary to consider whether the verge is to be adopted, whether existing underground services are public or private, what the physical boundaries are that mark the exact extent of the highway (eg fences or hedges and ditches) etc.

Once adopted the Highways Authority has a general duty to maintain under s41 Highways Act 1980. The Highway Authority must maintain the road in all circumstances, and is liable for personal injury or damage resulting from failure to do so.

Highway extinguishment/ stopping up is possible – procedures exist under Highways Act 1980 or TCPA 1990. Notice procedure including service on statutory undertakers – who will almost certainly object unless cable and pipes can be re-routed to their satisfaction. Following extinguishment the owner of the subsoil will regain full ownership of the surface. Any private easements that existed pre-dedication will revive.

Developer Checklist
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For more information, please contact
Robin Sharp Senior Associate DTM Legal - Copy

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