Highways & Byways.
Over the years we have built expertise to enable us to advise clients on a range of issues, often linked to planning decisions.
The laws governing public rights of way are known to be a minefield.
You can rest assured that we have the expertise.
The key to dealing with cases involving highways is always a sharp focus on historical detail and a thorough understanding of the legal principles. Our team are experienced in dealing with highways and byways.
Over the years we have built expertise to enable us to advise clients on a range of issues, which can present themselves in a variety of circumstances, often linked to planning decisions.
The basic rules are that land can only become a highway if its owner dedicates it for use by the public (rather than simply by another landowner), and if it is accepted by the public for that purpose.
The legal maxim ‘once a highway, always a highway’, holds true save for some situations. In a perfect world the dedication would be documented properly, but in most instances it is inferred. Cases commonly fall into two categories: the first are those where the use is shown to have existed in historical times, perhaps through a route being shown on an old map; the second is where witnesses attest to their own use of the route in modern times.
Either way if the route is reckoned to have been in use by the public for long enough then dedication would be likely to be inferred, so that the interpretation of different kinds of evidence is of crucial importance.
Definitive maps of many kinds of route are kept under the Wildlife and Countryside Act 1981, and our work has involved the presentation of cases at many public inquiries into Modification Orders under that Act.
The same basic rules will apply to vehicular highways but important considerations may apply to whether the route is maintainable at public expense, depending on when the dedication is presumed to have taken place. This can often have important ramifications for development potential, where proving that a track is already a highway might mean that difficult objections can be overcome.
Our work is often important too where a footpath or road needs to be stopped up or diverted in order to make way for development, since the procedures for such orders can be difficult to steer through, and since local opposition may be difficult to overcome.
The key to dealing with cases involving highways is always a sharp focus on historical detail and a thorough understanding of the legal principles.
Working With Our Service Team
Adding value to your property assets means successfully negotiating the maze of planning and environmental regulations and liabilities. Our experienced and expert team provide strategic and proactive advice to help you deliver on the legal aspects required.
- Suzanne Tucker
If you have an enquiry in relation to Town and County Planning or want to speak to a member of our expert team, please get in touch.
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A public highway is a way over which members of the public have a right to pass, and includes footpaths, bridleways, byways open to all traffic as well as roads.
Public highways are recorded by the local highway authority on the ‘definitive map’.
If a highway is adopted, the local highway authority has a duty to maintain it, although that does not automatically mean that they also own it – adoption vests only so much of the highway in the authority as is required for them to carry out their functions i.e. the surface and the sub-soil (known as ‘the top two spits’). The land below the subsoil can be owned by a private individual.
A landowner can dedicate a route as a public highway; a public highway can also be established where the use by the public has existed in historical times, even if it has since fallen out of use, or where witnesses, such as local people, attest to their own use of the route in modern times, without having used force, or done so with secrecy or permission.
Where a highway is not shown on the definitive map, an application can be made to have it recorded on the definitive map; evidence of how it has been established as a public right of way must be submitted. A landowner has the right to object to such an application and where objections are maintained, it is the Planning Inspectorate to decide whether the evidence shows there to have been a public right of way established.
