Sue Highmore examines property purchasers’ concerns about highways and how to find out whether they are justified
When purchasing land (“the target property”), it is really important to check out that it has the necessary access rights and that its future enjoyment and occupation will not be interrupted by others crossing it. Typical questions from a purchaser (“P”) are shown in the box, but this article addresses the first seven only. P will usually ask questions of the local authority and the seller, and may commission a desktop highways search. The sad truth is that the answers are rarely definitive.
A “highway” means a defined route over which all members of the public can pass without charge. They may be able to do so only on foot, with animals or with vehicles, depending on the highway’s classification. In contrast, a private right of way describes a route that can be used only by a defined class of people for a defined purpose. So a highway is always (and is often referred to as) a public highway. There is no such thing as a private highway.
Access from a highway without a ransom strip
Landlocked property is usually less valuable. If the target property has no suitable access direct from a highway then P needs adequate private rights of way instead.
If there is land belonging to a third party between the target property and the highway (a “ransom strip”), P may be refused access over it, or charged for such access. It is often impossible to check if there is a ransom strip because the red line on the Land Registry title plan (for the target property and for the highway, if registered) is not guaranteed. It gives only a general indication of the boundary. Yet even a narrow ransom strip can cause problems.
There is no map showing the precise extent of every highway. This is understandable because of the varying ways highways are created. Those established by long use may have no clear boundaries and the land they sit on is unregistered. In contrast, land bought by the highways authority (“HA”) for construction of a new road or dedicated to public use by formal deed will have precise boundaries shown on the title deeds even if not on the Land Registry plan.
So P is often forced to rely on presumption. If the boundary feature of the target property (wall, hedge or fence) is directly at the back of the pavement alongside a highway then a ransom strip is unlikely. If there is a grass or soil verge between the pavement and boundary feature, things are trickier. That verge could form part of the highway, but not inevitably. P should:
- Ask the seller who maintains the verge (eg by cutting the grass). If this is the HA then this suggests it views the verge as part of the adopted highway and P can cross it.
- Do an index map search to see if the verge is registered to the HA (not inevitable) or a third party. If not then P might be able to rely on the presumption that the soil up to the middle of a highway and adjacent to it belongs to the owner of the land next to the highway.
- Ask the HA whether it owns the highway (unregistered title) and where the precise boundaries are. Replies to such questions can be patchy or impossible to obtain within an acceptable timeframe or expense. Some clients will not want to bother.
The HA will be the borough council (for London boroughs), the unitary authority (for areas which have one) or the county council (where there is both a district and a county council for that area). For some special types of road, the HA may be another body, for example, Highways England (formerly Highways Agency) for trunk roads and motorways.
Access from the right type of highway
P should also check the highway class matches P’s anticipated use (usually both vehicular and pedestrian access). The same check will disclose any existing highways crossing the target property.
Terminology to describe types of highway is confused. For example:
- Carriageways: permit access by vehicles of all sorts (unless specifically restricted, eg on motorways). Part of a carriageway (the pavement) can be designated for foot traffic only. Trunk roads are a special type of carriageway.
- Bridleways: permit access on foot, by bike or with horses.
- Footpaths: permit access on foot only.
- Byways open to all traffic, or BOATS: in theory permit access by all means including vehicles, but are used primarily as a footpath or bridleway.
- Restricted byways: a special carriageway permitting access on foot or by bike, horse or non-mechanically propelled vehicle.
There is no map which shows the definitive position of all these types of highway. The definitive map (and statement) maintained under the Wildlife and Countryside Act 1981 by the relevant HA only shows the last four types. Moreover, entries on that map are neither comprehensive (some relevant highways don’t show up at all) nor fixed (entries can be amended with enough evidence). The local search (the CON 29 form, 2016 version, enquiries 2.2-2.5) should reveal what is on that map, and any pending applications for changes.
Who will maintain the highway?
Only highways designated as maintainable at public expense must be repaired by the HA out of public funds (section 41(1) of the Highways Act 1980). Often these are called “adopted” highways, though adoption is only one way for highways to become maintainable at public expense. Other highways may be repairable by and at the expense of third parties (sometimes the owners of land alongside the highway) or may have no one bound to repair them, or to pay the cost. Only the title deeds or custom will establish which.
P will want to establish whether the highway (including its verge, pavement and drains) is maintained at public expense. The definitive map will not tell P, as it does not record carriageways, nor show the adoption status of the highways on the map. Instead, P should check the HA list kept under section 36(6) of the Highways Act 1980. Enquiry 2.1 of CON29 (2016) does this. The only problem is that that list can be inaccurate. Highways maintainable at public expense may be missing from the list or stated as maintainable when they are not.
Contrast Chesterton Commercial (Oxon) Ltd v Oxfordshire County Council [2015] EWHC 2020 (Ch); [2015] EGLR 62 and Gooden v Northamptonshire County Council [2001] EWCA Civ 1744; [2002] 1 EGLR 137. In Chesterton the HA was aware of ongoing investigations into a potential addition to the list but failed to say so in the CON29 reply, and was held liable to P. In Gooden the HA included in its reply the inaccurate information from the list and was not held liable (even though it had an unrelated plan which showed the correct position).
Traffic regulation orders (“TROs”)
These impose restrictions on highway use, such as one-way traffic, loading times or prohibition of heavy goods vehicles. Once made, the HA must record the details. Some offer online access to these but mostly P will have to rely on the physical traffic signs. CON 29 (enquiry 3.5) should establish if there are TROs that have been approved but not yet implemented. It will not disclose proposals that are already implemented, nor those awaiting approval. Details should be available on the HA website but this requires a separate search.
Highways searches
There are commercial desktop highways searches, designed to present all the highways information conveniently, often on a map. However, they mostly offer the same information as is gleaned from CON29 (perhaps with roadwork alerts). They certainly cannot pinpoint the accurate extent of highway land.
Typical questions from a purchaser
- Is the target property accessed from a highway?
- Is that highway classified for the right type of use?
- Is there a ransom strip between the target property and the highway?
- Does a highway cross the target property? If so, is this acceptable?
- Who has to maintain and repair the highway?
- Who pays the repair costs?
- Are there unacceptable statutory or local restrictions on the use of the highway?
- Does the target property protrude over, under or across the highway?
- Are there private rights of way to make up any deficiencies in highway access?
- If new access is needed, will this be permitted and on what terms?
- Is anyone planning to drive a new road through the property or near it?
Why this matters
The purchaser or tenant of an existing property usually wants to know that it can access that property on foot and with vehicles, without unpalatable restrictions on the times or means of access, and without having to organise or pay for maintenance and repair of the access route. So they must check the property directly abuts a suitable road or path that is open for public use (a “highway”) and that any highways which cross the property are known about in advance so that P can make a decision whether to live with them.
A purchaser of a redevelopment site may ask more detailed questions about highways, since it may need to make new connections, or the planning consent may be conditional on dedicating some of the site as future highway land or on building that new highway.
There are two main public sources of useful information but neither is comprehensive. The definitive map should show all the footpaths, bridleways and byways but does not record all vehicular roads. The list of highways maintainable at public expense (kept under section 36(6) of the Highways Act 1980) will identify which roads and paths the highways authority considers it should repair, without charging the cost back directly to adjacent landowners. Both sources can be out of date, and entries on them can be amended, so finding out what is on the map or list may not be sufficient.
Neither source can rule out reliably the possibility of a ransom strip between the edge of the property and the edge of the highway. Such a ransom strip can be a costly problem to resolve, since the owner of the strip may have to be paid to transfer the land or grant rights over it. Without this, the property may be landlocked, and worth considerably less. Somewhat unsatisfactorily, the purchaser/tenant may ultimately have to rely on educated guesswork and hope on this issue.
CON29 (the usual local authority enquiries) includes several questions about roads, some of which are answered from the information on the definitive map and the section 36(6) list. CON 29O raises additional questions about any road proposals by private bodies (not the local authority). However, CON29 answers come back in text form, which may not be easy to translate. Desktop highways searches present the same information on a map, and may add limited additional information (such as whether there are roadworks signaled in the area).
Sue Highmore is an editor with Practical Law Property and a freelance writer
