Securing appropriate access and servicing rights from a public highway is critical to the success of any new development. While this might sound straightforward, issues surrounding highway access are among the most common legal challenges facing both new and existing developments.
What Is a ‘Highway’?
Despite its importance, the term highway does not have a precise statutory definition. The Highways Act 1980 provides a limited description, referring to “the whole or part of a highway, other than a ferry or waterway”; however, it is case law that primarily informs our understanding.
Under common law, a highway is generally considered to be a route over which the public has a right of passage. However, defining its exact extent and understanding its ownership can have significant implications for developers, landowners, and local authorities.
Key questions to consider include:
-
What rights exist to pass and repass over the highway?
-
Who is responsible for repair and maintenance?
-
Can services be laid within the highway?
-
Is the highway adopted, and does it directly abut the development site?
-
Is the adjoining road adopted or registered land?
-
If neither, does the ‘ad medium filum viae’ presumption apply (i.e. the rebuttable assumption that a landowner whose property borders a private road owns up to the centre line of the road)?
Creation of Highways: Dedication and Adoption
Highways can be created by dedication, either expressly or by deemed dedication.
-
Express Dedication: Under the Highways Act 1980, a formal process allows landowners to dedicate land as highway, with acceptance by the local highway authority.
-
Deemed Dedication (Section 31): A highway may be deemed dedicated if the public has used it “as of right” (without force, secrecy, or permission) for 20 years without interruption. This principle was upheld in R (Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs [2007] UKHL 28.
Other statutory frameworks, such as the Countryside and Rights of Way Act 2000 and the Natural Environment and Rural Communities Act 2006, also play a role in public access and rights of way.
Once dedicated, the public acquires a right to use the surface of the highway at all times and free of charge. The underlying ownership of the land remains unaffected, although the surface and certain adjoining zones are vested in the highway authority under section 263 of the Highways Act 1980. This includes the airspace above and soil beneath, often referred to as the “zone of ordinary use” (London Borough of Southwark v Transport for London [2018] UKSC 63). Lord Denning once colourfully described this as the “top two spits” of soil (Tithe Redemption Commission v Runcorn [1954]).
Adoption of Highways
Adoption is the process by which a public authority assumes responsibility for maintaining a road. This is typically governed by the Highways Act 1980, and may involve various highway authorities, including:
-
The Secretary of State for Transport
-
County or Metropolitan Borough Councils
-
Transport for London
The most common adoption method is via section 38 agreements, under which:
-
A developer constructs the road to the authority’s standards.
-
The developer maintains the road for 12 months post-completion, remedying any defects.
-
A financial bond or contribution is provided.
Only after these obligations are met will the local authority formally adopt the road.
Importantly, section 38 agreements are personal to the developer. Plot purchasers must therefore ensure that their contracts reflect any obligations for future adoption, particularly if they will be relying on the road for access or services.
Other Relevant Provisions for Adoption
-
Section 37 Highways Act 1980: Developers may serve notice on the authority requiring it to adopt a road. If the authority objects, the matter may be referred to a magistrates’ court.
-
Section 228 Highways Act 1980: This provides a streamlined route for adoption where roads have already been constructed. If a notice is displayed and not objected to within one month by the landowner, the road becomes adopted.
Building to Adoptable Standards
Many development agreements require roads to be constructed to ‘adoptable standards’. The Manual for Streets, published by the Department for Transport, sets out national guidance on design standards. However, each highway authority may have its own additional specifications.
Design and construction considerations include:
-
Road widths
-
Pavement and verge construction
-
Drainage
-
Boundaries (e.g. fences, ditches, or hedges)
-
Whether services (gas, water, electricity, etc.) are public or private
Only when these standards are met will the authority agree to adopt the road.
Maintenance Duties and Liability
Once adopted, the highway authority has a statutory duty under section 41 of the Highways Act 1980 to maintain the highway. Failure to do so can result in liability for personal injury or damage.
Stopping Up and Extinguishment
Where a highway is no longer needed, it may be stopped up under:
-
The Highways Act 1980, or
-
The Town and Country Planning Act 1990 (TCPA 1990)
These processes involve serving notice, including to statutory undertakers such as utility companies, who may object unless services are relocated satisfactorily. Once stopped up, ownership of the surface reverts to the owner of the subsoil. Additionally, any private easements that existed before dedication may be revived.
Conclusion
Highways law is a critical consideration in development planning, with far-reaching implications for access, servicing, adoption, and maintenance. Developers and landowners must assess highway status and legal rights early in the planning process to avoid costly disputes or delays.
For tailored legal advice or assistance navigating access and highway issues, our experienced team is here to help.
For more information, please contact jim.morris@dtmlegal.com
