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Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
Creation of highways - overview
A highway is a way over which there exists a public right of passage. A claim to a public right of way may be based either on the common law doctrine of dedication and acceptance or on some other statutory provision. There is no statutory definition of a highway.
Local authorities have powers to create new highways (including cycle tracks) as well as footpaths and bridleways under the Highways Act 1980.
Creation of highways at common law
Both dedication by the owner and user by the public must occur to create a highway otherwise than by statute.
Whether the dedication is express or inferred, a highway is created when a competent landowner:
either dedicates some land as a highway, or
is deemed to have dedicated some land as a highway, and
that dedication (or deemed dedication) is accepted by or on behalf of the public
A highway authority needs to invoke statutory powers to accept a dedication on behalf of the public.
Statutory adoption of highways
Where highways are created, they may or may not be maintainable at public expense. There are three ways by which this can happen:
a process initiated by the landowner
a process initiated by the highway authority
A landowner and/or property developer may construct/develop a road and provide notice to the highway authority under the Highways Act 1980, s 37 to dedicate the land as a highway and have that highway maintainable at the public expense.
A local highway authority may of its own volition adopt a street so that it would become a highway maintainable at the public expense.
More usual is securing adoption by mutual and legally binding agreement under a s 38 agreement. The agreement comprises a framework of clauses, conditions, terms and prescribed time scales within which the highway authority and the developer are expected to operate.
Ownership of highway land
Some highway land is merely vested in the highway authority; other highway land belongs completely to the authority. The key to understanding ownership of highway land lies in its history. It is important to consider for closure of highways.
The Local Government Act 1929 vested the highways in the highway authorities, which has been interpreted as the top two spits of the road in fee simple.
Highway authorities often buy freehold estates in land for the construction of new or improved highways. The powers for compulsory purchase and purchase are contained in the Highways Act 1980.
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