When carrying out a proposed property development it is obviously always vital to make sure that you can gain unimpeded access to the property.
Most of the time this will not be an issue but we would always strongly recommend that a highways search is carried out to ensure that:
- The entirety of the proposed access is highway maintainable at the public expense and
- There is no land constituting a “ransom strip” between the property and the highway
- The sight lines/visibility splays required by the planning permission are entirely within the highway and do not require rights over any other land
These issues can sometimes be overlooked by the inexperienced as the actual legal boundaries of a property and the highway do not always correspond with the physical boundaries on the ground.
Highways are difficult to define as there is no actual statutory definition of what constitutes a highway.
However the nature of highway means that it must be open to the general public to pass and repass over it.
There is therefore no such thing as a “public highway” or a “private highway”. A highway can be privately or publicly maintainable but this will not prevent members of the public passing over it.
Although a highway must be open to all members of the public the fact that the use of it is limited will not prevent is being a highway and therefore a bridleway which the general public only have a right to use on foot or with horses or bicycles is still a highway.
Development that requires work to the highway
It is often the case that a developer wishes to carry out works to alter or improve the highway and once again it is vital to ensure that there is a right to carry out these works.
Whether there is a right to carry out the works will often depend on whether the highway is publicly or privately maintainable.
Publicly maintainable highway
Each case will depend on its own facts but as a general rule if a highway is an adopted highway maintainable at the public expense the relevant Highways Authority can enter into an agreement with the developer under s.278 of the Highways Act 1980 to allow the developer to make alterations or improvement to the highway to facilitate the development.
Privately maintainable highway
Again each case will depend on its own facts but if the highway is privately maintainable it may be the case that although the public have a right of way over it, there is no right to carry out works to alter or improve it. If this is the case a developer would then have to negotiate directly with the owner of the highway, who would have no obligation to consent to the proposed works and which may therefore prevent the proposed development.
This is a complicated area and Boyes Turner’s specialist land development team are uniquely positioned to assist with their expert knowledge of all aspects of property development gained through many years experience of advising property developers on complex land acquisitions and disposals.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.