Now that we are moving back towards the ‘new normal’, we are all making use of highways to return to our previous lives. Whether we are walking to the shops, cycling to the office or driving home, we are all likely exercising our rights to use a highway to do so.
As we discover new places or return to old favourites, how do we know that we have the rights to use the path we want and what happens if a highway runs through our own property?
What is a Highway?
Highways take all sorts of different shapes and sizes and are used by a variety of different users, which means that there is no clear statutory definition of a ‘highway’.
However, case law has considered what is meant by a highway, and one thing which all highways have in common is that they are a defined route and are open to the public to pass and repass over.
Highways can be maintained at the public expense (such as a motorway), at private expense (such as estate roads within an industrial estate) or at nobody’s expense (where the surface is not maintained, but the land is still subject to rights in favour of the public).
Initially, case law defined three types of ‘highway’ and legislation has subsequently added a number of additional classifications . Most commonly, we come across:
- Bridleways: which grant a right of way over on foot, bike or horseback only;
- Carriageways: which grant a right of way for the passage of vehicles, but are not cycle tracks;
- Cycle Track: which grant a right of way on bike (and sometimes on foot) only. E-bikes (intended for road use) may not use a cycle track;
- Footpaths: which grant a right of way over on foot only;
- Footways: which grant a right of way over on foot only but, unlike a footpath, run alongside a road; and
- Motorways: these are a special type of road which can be used by specific types of motor traffic only – no rights of way on foot, bike or horseback are granted.
Why are Highways important?
Simply, without highways, we would not be able to travel without trespassing on someone else’s land (unless we were granted an express right to do so). Express rights are generally sufficient where access is only required by a specific user or for a specific purpose, but not where the general public as a whole need to use the route.
It is therefore important when purchasing a property to consider whether you have access from a highway and, if you do, whether the highway restricts the access rights. If you want to use your property as a lorry park but the only access is by a cycle track, lorries would not be able to use your property without committing an offence. Similarly, if there is no access from a highway and the land does not benefit from an express right to do so, lorries may not be able to get to your property at all.
If other people use your property without a personal right or using a highway which passes through your property, they may be trespassing which can be either a civil or criminal offence depending on the circumstances.
Finally, there is a general rule that “Once a Highway, Always a Highway” and so if a highway runs through your property, you will need to consider carefully whether it will affect your current or future use of the property.
How do I know if there is a Highway?
Local Authorities must maintain ‘definitive maps and statements’ recording the highways within the Local Authority. If a right of way is included on a definitive map, this is conclusive evidence that it is a public right of way. However, there may be rights of way which are not included on a definitive map but which are highways.
When carrying out due diligence, a Highways search will show the approximate extent of the adopted highway within the vicinity of a property.
How are Highways created?
Highways can be created by common law and expressly by statute.
Highways can be created by statute in a number of different ways, such as where the Highways Authority constructs a road on land it owns itself, where a private landowner constructs a road and enters into a section 38 agreement with the Highways Authority who dedicate and adopt the highway once constructed or, controversially, where a Highways Authority orders that land must be adopted as a highway.
To create a highway by common law, it must be established that a landowner has dedicated a public right of way across their land (which can be expressly dedicated or presumed dedicated) and that the public have accepted such right of way.
Presumed dedication applies where land has been used by the public as of right and without interruption, although there was no express right to do so. This can be an issue because such use is often not documented anywhere but is still treated as a highway. The High Court considered the issue in Director of Public Prosecutions v Miriam Instone, Peaceful Warrior [2022] EWHC 1840 (Admin) following an appeal of a Magistrates Court decision that two Extinction Rebellion protestors had no case to answer for the offence of aggravated trespass because the land they were protesting on was presumed to be a highway pursuant to s31 of the Highways Act 1980 as the landowners had not objected to the public having access over such land. The Magistrates Court decision considered that because the land in question could have been used freely by members of the public, it formed part of the highway. Such decision was overturned by Lord Burnett who confirmed that there could be no implied or presumed dedication of land unless the land was actually used by the public and that inferred use was not enough. Further, Lord Burnett stated that when considering if land is presumed to be dedicated, the land must have been actually used for 20 years from the date when the right of the public to use such land is questioned.
Can you remove a Highway?
There is a general common law principle that ‘Once a Highway, always a Highway’, and so, unless an action is taken to close the highway, the land will remain a highway and be subject to rights in favour of the public.
However, there are statutory provisions which allow highways to be relocated or closed in certain circumstances provided that specific criteria are met. In order to apply to close or move a highway, there are two types of statutory procedures which can be followed:
- Closure/Extinguishment order (where the highway is no longer considered necessary for public use and can be stopped up); and
- Diversion Order (where it is in the interests of a landowner, lessee or occupier of the land to divert the highway and there is a suitable alternative route).
Both procedures require the relevant local authority to consider the public interest in the highway and, in the case of a diversion order, the suitability of the alternative route.
Key Points
- Highways take many different forms and different types of highways grant the public different rights to be able to pass over them.
- It is very important to understand whether your property touches a highway to ensure that you are not prevented or restricted from accessing your property. If your property does not touch a highway, you may not be able to access it unless you have express rights to use other land to do so.
- If part of your property is identified as a highway, the public will have rights to pass over the highway. This could affect your ability to use or develop the property.
- Highways can be created by statute or by common law – therefore it is important to carry out due diligence before purchasing a property to understand whether any users have actually been using the property as a highway and, if they have, how long for.
- It is generally presumed that ‘Once a highway, always a highway’, however there are statutory provisions which allow a highway to be stopped up or diverted provided that certain criteria are met, although it is not always easy to satisfy these criteria.