The Long and Winding Road

Highways contribute not only to our ability to move around freely and get on with our often busy daily lives but also provide much appreciated access to the countryside during leisure time. However they also create practical difficulties for developers of land over which such rights lie. David Merson looks at some practical issues associated with the mechanisms for balancing the needs of both development and access in terms of stopping-up and diverting highways and footpaths.

Highway authorities are obliged by statute to “assert and protect” the rights of the public to the use and enjoyment of any highway for which they are the highway authority (highway for these purposes includes a footpath). As a consequence highway authorities have wide-ranging enforcement powers in respect of, for example, vehicles driving over public footpaths, buildings erected in the highway and other such obstructions.

The law however recognises the competing needs of development and provides a number of mechanisms to circumvent the old adage “once a highway always a highway” and allow development without fear of enforcement action. In effect these mechanisms permit the highway to be “stopped up” so that its status as highway is lifted and its statutory protection as such is removed thereby allowing development to proceed.

So why might a developer want to stop up a highway?

There are a number of fairly standard scenarios that are frequently encountered. Developers are advised by Government that they should endeavour to make the most efficient use of a development site. Consequently, a developer might need to:

• Create a new estate road network which runs over an existing public footpath and needs to stop-up that part of the public footpath over which the road is to run because it is a criminal offence to drive a motor vehicle on a public footpath;
• Construct buildings or houses over the line of an existing highway which would otherwise constitute an obstruction; and
• Divert rights of way round the development site in order to make the development scheme more attractive and as a result more viable in economic terms.

Statutory Powers

The principal stopping-up powers are to be found in the Highways Act 1980 and the Town and Country Planning Act 1990. The powers are quite different; they involve different tests and jurisdictions; and can have quite different timelines to which developers need to have regard in preparing project plans. The power to be used will depend on the particular circumstances of each given situation.

The Highways Act powers essentially arise in circumstances where it is said that the highway “is unnecessary, or can be diverted so as to make it nearer or more commodious to the public”. In the case of a public footpath the test is one of expediency that the path or way should be stopped up on the ground that it is “not needed for public use”. In the case of a highway, the power permits application to the Magistrates’ Court for a stopping-up or diversion order; and in the case of a public footpath the local council may make an order which, if contested, would need to be confirmed by the Secretary of State. This often involves a public inquiry and can be both time consuming and costly.

On the other hand, the Town and Country Planning Act stopping-up powers essentially arise in circumstances where it is “necessary to do so in order to enable development to be carried out in accordance with planning permission” granted under the Act or by a government department. Where the concern arises due to a proposed highway crossing an existing highways the test would be “the interests of the safety of users of the main highway; or to facilitate the movement of traffic on the main highway”. The powers are exercisable by the Secretary of State in the case of highways and the local planning authority in the case of public footpaths. Any order made by a local planning authority would, if contested, need to be confirmed by the Secretary of State. This too often involves a public inquiry and therefore can be both time consuming and costly.

Practical Pitfalls

When dealing with these powers clearly the evidential burden needs to be discharged.

Whether a highway is ‘unnecessary’ is essentially a question of fact for the magistrates. Where there is evidence of use of a way it will be difficult for the magistrates properly to come to the conclusion that a highway is unnecessary unless the public are, or are going to be, provided with a reasonably suitable alternative way.

Witnesses in all cases therefore need to be sufficiently qualified and of sufficient ‘standing’ to command confidence in the evidence to be given. Care needs to be exercised in circumstances where ‘lay’ councillors of the council or local planning authority wish, for their own reasons, to appear and give ‘evidence’. Local ward councillors often have personal agendas which do not necessarily coincide with those of the council or local planning authority of which they are a part.

It should be noted that ordinary public law principles apply. The local council in considering whether to make, and then to confirm, any order must be satisfied on both the ‘expediency’ and ‘needed’ tests. The exercise of this discretion would be subject to Wednesbury reasonableness principles.

In respect of the Town and Country Act Planning Act powers, the wording of the provisions is prospective and therefore orders by either the Secretary of State or the local planning authority cannot be retrospective. The Court of Appeal in Ashby v. Secretary of State for the Environment held that the stopping up of a highway could not be authorised with retrospective effect on the basis that the words “to be carried out” meant that the power was not exercisable where all the permitted development on the line of the highway had already been completed.

For a local planning authority, or the Secretary of State, to be satisfied that an order “is” necessary to enable development to be carried out there must still be some development to be carried out. In Hall v. Secretary of State for the Environment the High Court held that there was no power to make or confirm an order when the development concerned had already been carried out.

Where diversion is involved, the proposed alternative should be practical, effective, and capable of implementation at no cost to the public. It should not be significantly longer or onerous for users than the existing arrangements. This will obviously require care and attention to the detail when formulating the case for such an order.

Both regimes contain detailed procedural requirements to be observed. The relevant council or local planning authority must give notice to prescribed parties and cause public notices to be placed on-site and in local newspapers publicising the order and allowing for objections and representations to be made. These need to be carefully observed in order to avoid giving cause for third party challenge. Objections and representations need to be properly considered and taken into account when deciding whether or not to proceed.

The process invariably gives rise to costs for the council or local planning authority, whichever route is finally adopted. This will include, among other things, the opportunity cost of in-house officer time in the instructing department and the legal services department together with disbursements in respect of, for example, the not inconsiderable costs of statutory notices in newspapers and possibly also external solicitors or counsel to handle hearings.

The reality is that costs mount up and where a developer is clearly going to benefit from the service provided by the council or local planning authority, there is a real case to be made for a prior costs indemnity agreement to be entered into so that the developer bears the full cost incurred and the public purse is not placed under unnecessary pressure.

Conclusions

The difficulties on the implementation of development that highways can sometimes create are far from insurmountable. The solutions can often be ‘fiddly’ in terms of compliance with the procedural requirements of the relevant legislation; time consuming in terms of hearings or inquiries when faced by opposition and objection; and costly in terms of money and scarce resources.

It is for those very reasons that both developers and the relevant local authority need to engage at the very earliest opportunity. They need to talk to their respective professional advisers at the front end of the process so that the approach to be adopted can be properly planned, agreed and implemented with the minimum of fuss and delay.

David Merson is Head of Planning and Environment at Steeles Law (www.steeleslaw.co.uk) and can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it. or on 0207 421 1742.