HIGHWAYS AND DEVELOPMENT

By RUTH STOCKLEY INTRODUCTION

Various issues may arise at different parts of the development process. Common examples:- • Available access to a development site may be questionable: e.g. over third party land or over a footpath. • Highways, particularly footpaths and bridleways, may exist over development site. • Dedication and adoption of constructed may prove difficult where developer is not freehold owner. INTRODUCTION

VITAL to consider and address highway issues at the outset as part of the planning process. Otherwise • At best, significant delay may ensue; • At worst, development may not ultimately be capable of delivery. ACCESS ISSUES

Identification of where and how access to site be gained must be a preliminary consideration. • QUESTION 1: Does site (or land in applicant’s ownership or control) have direct access to public vehicular highway in a suitable location? • If not, issue must be addressed at outset. • Must be addressed for physical extent of access, land required for any visibility splays, or land where other highway works required to make access acceptable. ACCESS ISSUES

Three primary issues:- 1. Ability to carry out physical works to construct access and to bring up to adoptable standards without requiring landowner’s consent. 2. Ability to use land to access development site. 3. Ability for access to become a highway and maintainable at the public expense. PRIVATE

OPTION 1: PRIVATE RIGHT OF WAY OVER LAND. DOES IT EXIST? • Private rights of way may be express or acquired by prescription. WHAT IS ITS EXTENT? • Nature of use permitted in terms of type and extent of traffic. • That in turn will identify extent of improvement works permitted. PRIVATE RIGHT OF WAY

DOES DEVELOPMENT SITE HAVE BENEFIT OF PRIVATE RIGHT OF WAY?

If available, works can be carried out. In addition, private right of way may be used to access site.

To create a highway and to have highway adopted requires other measures. PUBLIC RIGHT OF WAY

OPTION 2: PUBLIC RIGHT OF WAY OVER LAND. DOES IT EXIST? • Public rights of way identified on Definitive Map. • Otherwise have to demonstrate by evidence, taking account of ss.67 & 68 of Natural Environment and Rural Communities Act 2006. WHAT IS ITS EXTENT? • Be clear from nature of highway – footpath, bridleway, restricted , byway open to all traffic. PUBLIC RIGHT OF WAY

CAN IT BE RELIED UPON? • Can only do works to right of way if it is maintainable at the public expense by way of a s.278 agreement. • Otherwise, a criminal offence to damage or disturb its surface. • Can use to serve development site if public rights of way are same or greater than public use required to serve development. PUBLIC RIGHT OF WAY

BUT BEWARE: A public right of way along or across means of access can create a problem of its own. S.34 Traffic Act 1988: offence to drive a mechanically propelled vehicle over footpath, bridleway or restricted byway without lawful authority or excuse. May have to extinguish or divert public right of way. SECTION 38 AGREEMENT

OPTION 3: S.38 AGREEMENT TO CREATE NEW HIGHWAY.

• Preferable approach, but requires active co- operation of landowner. • Also a problem if landowner unknown. • ONLY freeholder can dedicate land as a highway. S.228 HIGHWAYS ACT 1980

OPTION 4: S.228 PROCESS TO CREATE A NEW HIGHWAY. • S.228(1) is an alternative method for works authority to declare a private street to be a highway maintainable at the public expense. • MUST be a “private street”. • Subject to objections from owner of street. • Useful where ownership is unknown. ACQUISITION OF LAND

OPTION 5: ACQUISITION OF LAND • Last resort is acquisition of land by agreement or by local authority compulsorily. • Likely to be on a ransom strip basis. STOPPING UP AND DIVERTING HIGHWAYS

Existing highways on development site create their own problems. Note:- • Grant of planning permission does not authorise stopping up or diversion of a highway. • An offence not to keep a highway open and unobstructed by development unless and until extinguished or diverted or subject to a TRO. STOPPING UP AND DIVERTING HIGHWAYS Principal statutory powers:- • Ss.247 & 257 Town and Country Planning Act 1990; • S.116 Highways Act 1980; • Ss.118 & 119 Highways Act 1980.

Preferable to use process most suited to facts and to reason for stopping up or diversion. TCPA Powers

In general, preferable to use if reason for order is to enable development to proceed because appropriate weight MUST be given to any planning permission granted in determining whether to make order.

If SOS or LPA refuse to make order in first instance, only available remedy is judicial review. TCPA Powers

Only statutory criteria is necessity to stop up or divert highway in order to enable development to be carried out.

BUT remains discretionary and effects of order to be balanced against advantages. TCPA Powers

NOTE:- • Development must not be “substantially completed” before Order is made: Ashby v. SOSE [1980] 1 All ER 508. Otherwise, TCPA powers unavailable. • Order can be made under s.257 once a planning application has been made: s.257(1A). • Application can be made for order to SOS if planning appeal under s.78 so that two can be determined together: s.253. Highways Act 1980 Powers

Section 116 HA:- • Statutory Criteria of highway being “unnecessary” or can be diverted “so as to make it nearer or more commodious to the public”. • To be unnecessary for purposes would reasonably expect public to use the highway: Ramblers Association v. Kent County Council (1990) 154 J.P. 716; • OR for particular highway function it serves: Spice v. Leeds City Council [2006] EWHC 661 (Admin). Highways Act 1980 Powers

NOTE:- • Application can only be made by LHA. • Request for application can be made to LHA which can agree to do so subject to third party agreeing to pay costs: s.117. • No right of appeal against LHA’s refusal to make application; only judicial review. • Compliance with statutory formalities in Schedule 12 is critical. Highways Act 1980 Powers

• Consent of any relevant district and parish council must be obtained. • Consent of person over whose land any diversion is sought is required. • Planning permission for any development should not be given weight in the determination process. Highways Act 1980 Powers

Sections 118 & 119 HA:- • Apply to footpaths, bridleways & restricted byways. • Local authority makes order subject to confirmation by SOS where objections. • No requirement for any development to be involved. • Number of statutory criteria to be met. EFFECTS OF ORDERS

• Highway ceases to exist and if was highway maintainable at the public expense, LHA’s interest in surface reverts to owner of subsoil. • Administrative orders made under TCPA or ss.118 & 119 HA can contain express provision for Definitive Map to be modified without a separate Modification Order having to be made: s.53A Wildlife and Countryside Act 1981. • Any private rights of way will be unaffected. ANY QUESTIONS?