Highway rights over land can present a considerable obstacle to development of land. At best the process required to remove such rights can be costly and time consuming. In the worst case development can be entirely frustrated if such rights cannot be removed and a site becomes commercially unviable as a consequence. Even where such rights are little exercised they should never be ignored as development on or over a highway may leave a developer liable to carry out expensive alterations to a completed development and may even constitute a criminal offence.
The principle methods of removing highway rights over land (known as ‘stopping up’) can be achieved by application to a magistrates court (section 116 of the Highways Act 1980) or by application to the Secretary of State (section 247 of the Town and Country Planning Act 1990). What follows is a brief overview of some of the factors to be considered by a developer when highways rights interfere with development.
The procedures under the Highways Act and the TCPA are very similar requiring prior notice to be published in at least one local newspaper and the London Gazette, displayed on a site notice at each end of the length of highway to be stopped up, served on every ‘statutory undertaker’ who has apparatus under the area that is to be stopped up and on every local authority in whose area any highway or any land to which the order relates is situated (the exact recipients in each case depending on the structure of local government in the area).
Prior notice of a s116 application will also need to be served on all owners or occupiers of land adjoining the highway to be stopped up (and in the case of classified roads the Secretary of State). In the case of an application under the TCPA advance notice does not have to be served on such persons.
The issues of effecting service should not be underestimated. Thorough due diligence must be undertaken to ensure that all appropriate bodies are identified otherwise the body determining the application may well refuse to grant an order on procedural grounds.
In the case of a Highways Act application the local highway authority for the area will make the application and prior consent (as distinct from notice) to the application of parish and district councils must be obtained in relation to applications concerning certain roads and paths. As a consequence various tiers of local government can effectively veto an application before it ever reaches the magistrates court. Although local authorities do not have the ability to veto an application made pursuant to the provisions of the TCPA a sustained objection will lead to the Secretary of State requiring that a public inquiry be held.
A welcome change to the law came into force when the Growth and Infrastructure Act 2013 amended section 253 of the TCPA 1990 to enable a draft stopping up or diversion order to be published alongside the planning application (i.e. before the consent is granted). Prior to this change an application could only be made following the grant of the planning permission (and then only if the development concerned had not been completed).
Provided that development has not been completed, all that needs to be demonstrated for the purposes of the TCPA is that the stopping up is required to to enable development to be carried out:-
Contrast the above with the provisions of the Highways Act which require a highway authority to demonstrate to the satisfaction of the court that it is “unnecessary”. Where possible it is clearly preferable for a developer to make an application under the provisions of the TCPA rather than trust to what is regarded by both the local highway authority and magistrates court as being unnecessary.
The costs of stopping up should not be underestimated. In the case of a contested application under the TCPA the costs of a public inquiry can be extremely significant. In addition even if an order is obtained it is capable of being challenged by appeal to the crown court (in the case of an order obtained pursuant to s116) or being quashed by the High Court (in the case of an order obtained pursuant to the TCPA).
Where applications for an order are uncontested costs under the Highways Act may well be higher than under the TCPA due to the fact that the local highway authority for the area will usually seek to recover its costs from the party seeking an order. An often overlooked provision is the potentially significant costs of relocating the apparatus of statutory undertakers under part II of schedule 12 of the Highways Act 1980.
Advice should be sought at an early stage in the project where highway rights exist over a development site to ensure the best choice of procedure and the correct timing of the application in any specific case.
Although the changes introduced by the Growth and Infrastructure Act 2013 will be welcome to developers, in certain circumstances the procedure under the Highways Act may be preferable given the potential for a potential obstacle to development to be overcome at an early stage and before many other project costs involved with a planning application are incurred. Section 116 is also useful in circumstances where the TCPA would not be appropriate (such as where development has been completed or where fixed proposals for development have not been finalised).
The law concerning stopping up is a specialist area with traps for the unwary. In addition to the above principle provisions there are other powers available to highway authorities to extinguish highway rights and additional provisions concerning roads in Greater London which should be considered where appropriate on a case by case basis and which specialist advice should be sought.