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Joshua
Joshua, Lawyer
Category: Law
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Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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In 2005 an access to a business park from a non classified

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In 2005 an access to a business park from a non classified road was extended and the grass verge area of the highway was surfaced. After fifteen years out of the blue the council highway authority have written to request that the surfacing is removed and the grass verge reinstated due to the steepness creating a danger to road users and apparently no licence being granted for the works.
Planning permission would not have been required as its a non classified road and in any case would now be immune after ten years with no enforcement action.
The area in question was apparently where the highway curtilage met with an agricultural field / roadside verge and outside of the strict business site ownership.
The widened access has been in constant use since then and no complaints ever received until now.
Is it too late for the order of the removal of the hard surfacing? and or too late to order changes to the gradient?
Thank you.

Hello and thank you for your question. My name is ***** ***** I will be very pleased to assist you. I'm a practising lawyer in England with over 15 years’ experience. Please be aware that although I will endeavour to reply to you promptly, I am also in full time private practice and so I may not be available to respond immediately and it may also take me a few minutes to prepare a reply. The site will notify you as soon as I respond. I look forward to working with you to answer your question fully.

  1. may I clarify please who owns the land in question?
  2. has the land in question been adopted as public highway or is it a private road?
Customer: replied 4 days ago.
Good morning,
The land in question as set out is that between the highway carriage way and my own private land ( what would have once been a verge between the road and a field ) but then made into an extension to a business park, already in existence. It,s only the access area that is in question- adopted as part of the highway on an unclassified road. Thank you.
  1. thank you. I did read your initial post carefully and the information you provided was certainly helpful but it does not answer the questions I raised. a large area of highway verge will not necessarily be adopted though I am grateful for your above confirmation that it is adopted by the local authority. I assume this means you have checked with the highways department and confirm that the area in question is adopted as this point is very important?
  2. adoption status does not deal with ownership. Adoption is not the same thing as ownership but rather, simply relate to the top surface of the land in question. Have you been able to ascertain who owns the land by checking with land registry records?
Customer: replied 4 days ago.
Thank you,
Yes I do have somewhere the public searches from when I made these once. the verge is 100% outside of the land ownership boundary but please let me check the key on the other mapping to properly answer your questions. Thank you for being so vigilant

thank you. I look forward to hearing from you further

Customer: replied 4 days ago.
the land is outside of ownership and is owned and adopted by the HA. However historical planning consents have included the full access and made no objection.

Thank you. Can you clarify what the "HA" is? Highways authority? By which you refer to the local authority as opposed to Highways England which maintains major A roads and motorways?

Customer: replied 4 days ago.
It’s on county council headed paper but is from the local area office, who maintain roads and deal with obstructions etc but seem to have powers under the highway act to make applications to the magistrates courts etc for enforcement action.

thank you. I'm grateful for you bearing with my queries. Based upon what you have told me, the area is both owned by the local authority and has been adopted by the local authority as highway. By virtue of this adoption, public rights are attached to the section of road in question. The local authority has responsibility following adoption to maintain publicly adopted roads and to maintain and facilitate access along those roads.

Accordingly, if the area of land has been adopted, I cannot see that the local authority has a great deal of option in respect of that area because it cannot unilaterally withdraw adoption or decline to maintain an adopted road. I am also confused by the request by the local authority to remove surfacing because if the area is adopted, as we have already discussed, responsibility for maintenance of that Road lies with the local authority. Because the local authority does not have the right to unilaterally withdraw adoption, it seems to me the options available to the local authority would be to make modifications to the area so far as it is able, to address highway safety concerns

Customer: replied 4 days ago.
Thank you for such detailed consideration. I think though that there may still be some confusion. If a landowner has made deposits onto the highway, to form an access which was otherwise a grass verge but this occurred over ten years ago and has been in constant use, can the access be taken away by the highway authority for safety reasons? If the current land owner does not comply with the request to remove the hard standing and reinstate the verge?

I think there may be some misunderstanding from what you say; do I understand correctly from your last post above, that it was not the local authority that they'd the surface but rather someone else - you perhaps?

Customer: replied 4 days ago.
Not myself but possibly a previous land owner, many years ago to widen an access. Planning permission would not have been required as it’s an unclassified road but maybe a licence from the council highways to permit any works on the highway including tarmac over the verge. If this was the case but many years ago and now an order to reinstate the verge. Many thanks

thank you. My apologies for being across purposes of this point and this paints a very different picture. From what you describe, what has occurred, is at some point, an individual has taken it upon themselves to lay some form of surface on land which was neither owned by them and from what you describe, was also probably adopted highway verge.

There is no legal right to lay a surface on land which is not owned by you and as such, the individual in question is guilty of trespass in this respect. In addition, there would be no right of way either public or private over that area by vehicle is no vehicular public right of way exists over highway verge.

if you use this as a means of access, you would need to show evidence of 20 years of use in order to establish what is known as a prescriptive right of way. In the absence of this, the local authority can require that you no longer use the area for vehicular access.

Unless they can demonstrate it was you that they'd the surface, notwithstanding the above, I cannot see that they can insist that you remove the surface as you can simply say that you are not responsible for laying the surface. If the local authority cannot identify who laid the surface then it falls to them to restore the area to the condition in which they require it to be maintained

Customer: replied 4 days ago.
But the access has been included in subsequent planning applications and accepted so yes there is technically a right of way by default. It seems unreasonable for the authority to have accepted the access as part of a planning application but then many years later to insist that any surfacing must be removed? No surfacing was applied for by licence as it was already in place... but apparently made by a previous owner without a licence to lay the tarmac on the highway?

planning permissions are not material in terms of granting rights of way. Permissions are essentially licences to carry out works otherwise prohibited under the town and country planning act. A planning permission does not confer property rights of any kind. By way of example, I could apply for planning permission to build a house in your garden and even if I were granted permission, I would not be able to build the house because I don't own the land. This is a crude example but the same applies for rights of way. A planning permission in no way confers or infers right of way over land

Customer: replied 4 days ago.
But the highway authority were consulted on subsequent planning applications, including that part of the access and approved the use industrial access - usual conditions like no obstruction of visibility splay etc?

I can only refer again to the above that planning permission does not infer or confer any property rights or easements. Planning permission is an unsafe basis on which to seek to establish any form of proprietary right over land I fear

Customer: replied 4 days ago.
Full scaled plans were submitted in subsequent applications which ask the highway authority if they have any objections to including the land within the access to the change of use area, to which there was no objection. Usually if there was a reluctance to allow that right of way for a valid reason then as part of the consultation the highway authority would recommend a refusal but they commented that it was an existing access and deemed safe and commented that the number and the types of vehicles to use the access was acceptable?
Customer: replied 4 days ago.
Just to be clear its only the verge in the highway ownership ( access off the main road )the rest belongs to the land owner

I understand what you are seeking to establish but I can only refer you again to my above comments that are planning permission is not a basis on which you can establish any form of proprietary right in land be is a right of way or otherwise. I do not suggest that the local authority may not have acted improperly from what you describe in respect of one or more of these planning applications but irrespective of that being the case, that would still not establish any form of proprietary interest. In order to establish a right of way, you would either need an express grant by the landowner in the local authority from what you describe or 20 continuous years of use of the right of way under the prescription act or the doctrine of lost modern grant.

Customer: replied 4 days ago.
Thank you kindly and when a section 171 licence has been granted to work on a highway, can it be revoked? If the authority then think that they have made a mistake?

a section 171 licence will usually be granted subject to conditions and the council usually similarly reserve a right to revoke the licence on breach of any of the conditions set out in the licence

Customer: replied 4 days ago.
It was issued without any conditions and to cover those works already made with clear wording but then they said that it was a mistake because they had not fully understood the history?
Customer: replied 4 days ago.
now being asked to remove those works but had been granted a licence to cover what had already been done and some slight re profiling

What works did you carry out under the licence?

Customer: replied 4 days ago.
It was a licence to deposit material on the highway to create a bund for drainage / flood prevention by directing water to the road side ditch. All worded correctly and without conditions but then after the licence was issued another member of management decided that following a review it should not have been issued

Thanks. A s171 licence is used to allow for the temporary depositing of materials on a highway or to allow excavation. It does not grant authority to carry out other works to the highway so far as I am aware. I am therefore not certain this licence would have covered any works carried out to the area in any event?

Customer: replied 4 days ago.
The wording says that a 171 allows for depositing on the highway and or minor works to the highway
Customer: replied 4 days ago.
Am I able to pay for a call maybe to go into more detail with you?

S171 provides for excavation in terms of works but not alterations to the road.

https://www.legislation.gov.uk/ukpga/1980/66/section/171

Customer: replied 4 days ago.
Thank you I will study this, are we able to schedule a call?

I am available on Monday if you would like to speak.

Customer: replied 4 days ago.
Thank you, ***** ***** details of how to make those arrangements

you can request a phone call or alternatively, I can offer phone call service on Monday through the website

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