Section 2. General
2.1: Definition of highway
Professor Keith Davies, Barrister, Department of Law, University of Reading.
The relationship between public rights of way and the land over which they run,
together with the principles governing the existence and vesting of 'highways', is a
complex branch of the law which is rooted in history.
Michael Orlik, Solicitor
A highway, which has been in existence, cannot be lost through disuse, hence the maxim
"once a highway always a highway". However, acquiescence by the public over a
long period of time in acts, such as locking a gate, inconsistent with land being subject
to highway rights, may point to the conclusion that there never was a highway along the
route. Where highway rights have existed in the past, a proposal is discussed for new
legislation to enact that 20 years non-user raises a rebuttable presumption of abandonment
of a highway.
David Braham Q.C.
The meaning of the curious expression ‘private highway’, which featured in
some inclosure awards and in the private Acts which authorised those awards is addressed,
together with the meaning of the expression communis strata, which featured in a widely
quoted passage in Coke upon Littleton, and the meaning of the expression ‘common
way’..
Simon Best, Assistant Solicitor, Wiltshire County Council
The 1990 Rights of Way Act amended the Highways Act 1980 so as to incorporate minimum
and maximum widths into part of the legislation that governs rights of way. But the scope
of the 1990 legislation is limited, and if a dispute as to the width of highways arises
then other sources of law must be examined to find the principles to be applied.
Michael Orlik, Solicitor, Partner, Dibb Lupton Broomhead
At common law a highway can be any width. The extent of the land subject to a right of
passage is a question of fact, dependent on the intention of the landowner dedicating the
land and the extent of the public use. Parliament has on occasion attempted to lay down
specific rules regarding widths but with limited success.
Dr. A. Dunn; LL.B., Ph.D
If the land over which a right of way lies is physically destroyed, the public right
to use the way may be destroyed as well. However total destruction is rare. Often, the
public rights will be preserved, even if in a more limited form, as where the route has
been submerged under water. If the land carrying the route is eroded, the right may still
survive. Particularly if the landowner is at fault, there will be an obligation to restore
the original route wherever possible. Even if this is not possible, the landowner may be
liable to compensate affected members of the public.
Peter Wadsley, Barrister
In R. (on the application of Gloucestershire County Council) v.Secretary of State for
the Environment, Transport and the Regions and The Ramblers Association Hallett J. dealt
with the following issues arising from an Inspector's refusal to confirm an Extinguishment
Order made by the highway authority under s.118 of the Highways Act 1980 in respect of a
footpath which had largely fallen into a river:
a) whether there was a right to deviate onto adjoining land in a case where a river bank
footpath was destroyed by erosion;
b) whether that footpath might move with the bank as the bank was eroded and moved;
c) the liability of the highway authority to guard against erosion of the bank;
d) whether the Inspector's decision could be upheld in any event because there was
evidence that a new path had been dedicated following public use; and
e) whether the procedure adopted by the County Council was defective and, if so, whether
the decision should still be quashed.
Michael Orlik, M.A., Solicitor, Consultant with DLA, Birmingham
The ownership and status of roadside verges is considered, with particular reference
to the considerations raised by manorial waste.
Ross Crail, Barrister
The 'fence to fence' presumption applies only where the fences were put up by
reference to the highway, that is, to separate the adjoining closes from the highway. The
extent to which that precondition is itself the subject of a rebuttable presumption of law
is reviewed in the light of the judgments of the Court of Appeal in Hale v. Norfolk County
Council.
G.R. Lea, LL.B., LL.M., M.Phil.
In Overseas Investment Services Ltd. v. Simcobuild Construction Ltd. and Swansea City
Council 1 the Court of Appeal held that a right created by an agreement under s.38 of the
Highways Act 1980 to bring about the construction of a highway maintainable at public
expense was not a public right within the meaning of s.70(1)(a) of the Land Registration
Act 1925.
Professor Emeritus Keith Davies,, J.P., M.A., LL.M., Barrister, Hon.Assoc.R.I.C.S.
Where land becomes the site of a highway, who (if anyone) is Where land becomes the
site of a highway, who (if anyone) is then the 'owner' of that land and who is the
'occupier'? To answer this it is necessary to examine the effect on the previous ownership
rights over that land of 'dedication', 'adoption' and 'vesting'. Highways are public
rights of way; and rights, unlikeland ownership, do not extend indefinitely upwards and
downwards from the land surface, so that the airspace above and the subsoil below are not
included in a highway. Further questions then arise as to what (if any) ownership rights
and liabilities can be enforced in relation to highways. The relevant law suggests that
although on creation of a highway the pre-existing ownership rights appear to be in
abeyance they have not been extinguished, even though the adoption of the highway will
vest a limited right of ownership in the local highway authority. Just as a leasehold
tenancy and the landlord's reversion to it co-exist in the same land, so do the
pre-existing landownership and the special rights in the land vested in the highway
authority. If and when thetenancy or the highway cease to exist the other ownership rights
survive and occupation rights revive.
A. J. Pain, M.A., Solicitor, District Land Registrar, Plymouth
The nature of the information held by the Land Registry, together with restrictions on
access to it, puts limitations on its usefulness to those researching the existence of
rights of way.
Professor Emeritus Keith Davies, J.P., M.A., LL.M., Barrister, Hon.Assoc.R.I.C.S.
Highway authorities often need to acquire land for building new highways, or improving
existing ones. Like all such acquisitions for public works, this requires statutory
authorisation even for acquisitions by agreement. Also, in highway acquisitions, as in
most other cases, compulsory powers are normally necessary if vendors turn out to be
recalcitrant. An elaborate system of statutory codes, centring on compulsory purchase
orders (CPOs), deals with acquisition procedures and compensation. The eventual completion
of the purchase in each case takes the form of a registered transfer of title just as in a
free market sale. But acquisition must not be confused with 'adoption' i.e. when a
developer has 'made up' a road to the standard laid down by the highway authority, and
dedicated it, the authority 'adopts' it and it 'vests' in the authority. This means that
an authority obtains ownership of highways sometimes by acquisition (agreed or compulsory)
and sometimes by adoption - acquisition before construction, or adoption after it.
David Braham Q.C.
The highway authority has a determinable fee simple in the surface of the highway.
That is an estate in land which is registrable under the Land Registration Act 1925, but
it was held that non-registration did not defeat the statutory vesting of the highway in
the highway authority.
Christopher Jessel, M.A. (Oxon), Solicitor, Consultant, Farrer & Co.
A first instance decision confirms a long accepted but undocumented principle that
adverse possession of highway land maintainable at public expense cannot bar the title of
the owner or give rise to a title to the land. There are some apparent exceptions to this
general rule which are explained.
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