Written and recorded by Hannah Mackinlay
they talked for 20 minutes on the subject on highways. Now this is something again which people can house misunderstanding. Also, there's confusion over what is a highway. What is in the highway? What the extent behind is how green is. My highway also hires a highway defense highway. Andi, how does this relate to what I get on my local search on the hallowed redlining on the land registry plan? Before you get into that detail, let's just think about what the word highway needs. Highway has a number of different meanings. Includes roads. Includes footpaths. Includes bridal ways, cycle ways they all the highways but their own different level of user needed. The highways Act 1980 simply to find a highway as being the whole or part of a highway. So how can you just divide on the highway a highway infection? The reason is that they're using the common law definition, which existed well before the Highways Act was thought off. So what is the common law? Definition of highway is a route. Rather, an area of land in Takura is a route by which the public meeting all of the public, rather special class of people could pass and re pass as often or as little as they like without let or hindrance on without consent. So clearly, the roads in front of your house may have been there since Roman times. While they may have been created in a new modern estate, or they may have been created in the 19 thirties or 19 forties before any formal adoption was kind out and then another authority just started to make taking it accepted. It makes sense. So what is your local search? Ask your local search? Asked the question. Is the road named in the description of property a high weight maintaining will at public expense? Let's just unpick that for a minute. The road named of the description of property. Let's say it's pretty. Location Avenue is Occasion Avenue. When you look at it on Google Street view, you may see a rather wind grass verge in front of number 32 K should avenue on you may see a fence. Also, that fence coincides with the red line on the land bridge. You plan No occasion Avenue is a road, and it may or may not be maintainable public expense. But the question is really about. The road is not about the grass verge on again. Who owns the grass Verge? History details, preregistration deeds undressed the deeds etcetera made tempter might on that. Then what about the possibility that Cater Avenue is a road that is used by the public without metal hindrance, etcetera? But the local authorities saying, Well, actually, it's not maintainable by us. It will still be within definition of highway. The local search will say that it's not adopted or maintained by a public authority. Now the reason for this may be many. It could be that is just an old one adopted Rose on. There are lots of those around the country that have never bean substitute formal adoption procedures or action by the authorities under the Berries, highways acts over the centuries. Or it could be a failed adoption. And these are becoming incredibly common where developers I've never enter into a Section 38 agreement or I'll turn to the entrant in Section 30 agreement and then fail to carry out the work or felt Karen works the standard required by the local authority. Andi, you may have a local search section 38 But it says in the answer, Local fresh, that the road is not maintain of a public expense. At that point, well, morning bells ought to ring on serious conversations behind your client course. The problem you have a cynical lawyer is that clients don't believe anything you do is other than paperwork, and they think they could all do it themselves. They only at the time, and it's really simple. It's probably well done by secretaries anyway, because they fall in love with property and they believe everything the age upstairs on the development of Citation says. And they can't believe anything could possibly go wrong and then move on a couple of years. Really find out the roadies problematic is cracked. It is perhaps subsiding that dreams don't work. Develop has gone bust, and then all the sudden they forget the fact that they told you you didn't care about any of that stuff. And then suddenly it's your fault because you could possibly have told him the truth, risks that they could be facing if they proceed to buy this property with one adopted road. And I think we've seen what happened with it. Ground rent leases At the moment, everyone is saying they're sisters didn't tell him anything about it. But of course, that's twisters didn't think, used to ignore it, and the same thing will apply to UN Adopted grows. So that's just moving on from that, I think to ourselves how our highways created patient highways on my nose. Highways can be created formerly under Section 38 agreement or under the public works acts, etcetera. Or they could be creative informally by long uses. Now, obviously, a lot of the rose that we drive walk along have been in existence for at least a couple of 1000 years before even the rule of law applied. These are being used by the public to pass and re pass is often as little as they liked, and they have become highways. As a result, the extent of the highway obligations on local authority on the right are subject to debate on really, there is nothing of the land ready to help you on that. It's about looking at previous uses is looking history and deep. So what extent you may have a formal adoption agreement under Section 38 agreement of the other extent you may have road that's been existing for 200 years. In between the two, there may be grass, verges and other eggs of land or past that subject some question over what their status is now. Um, this is something that has been debated for many years in many cases, but the matter was made of it easier by the Highways Act that says that if away has been used by the public without interruption for 20 years under Section 31 that it will be presumed that this way will be a public highway. But let's just think for me that's only saying that the public have a right of way over it. It's not saying that the local authority or climate authority have any responsibility to maintain it. Do you realize there are two levels of this? You've got right of the way of the public on Also, you've got obligations to make take and really you want kicks in both pox boxes, but then look in Section 31 in detail, it says. But there will be a presumption that the way has deemed to have Bean dedicated by some long dead lander unless there is sufficient evidence that there was no intention on the part of the landowner during that period of 20 years to dedicated. Yeah, there are provision in highly fact, has changed by the group the Infrastructure Act, which allowed landowners to lodged a declaration on day plan with the highway authority, saying that they have no intention of any medication of any land in their ownership, and there is no obligation. Venter file further declarations every 10 or 20 years, depending upon the circumstances, and these can be search for with your local authority is part of the authorities. Think of additional enquiries. So if you're buying a property, whether it's an unusual area off grass or the green green areas or something of that nature, first thing is history. Also, what is he actually used for, by and by whom? Other In any impediment science notices are you nature on, Of course, that the local authority is anyone launched a note saying that they do not intend that this shall be used as public rights of way. You may have noticed already again, you're certainly notice from having seen the seminar that often there are signs or walls, adjoining roads and paths that say sex and 31 of the highway exact, not a public right of way. There are no highly rights or words to that effect. If there is such a notice, then your problem. Notice that no amount of usage by the public we'll have created a public right of way. But of course, the owners of properties adjoining this may have a client prescriptive rights of way if they could qualify and prescription actor under the doctrine of London, most lost modern grant on. So in the period there is similar of 20 years, so gay and I'm directory entries are completely useless. It's about asking old Fred round the corner what he remembers off the use off this way or track on this is the nightmare off the on fire off the title deeds that took place 20 years ago when it was decided they didn't need them. Well, we don't need them if nothing goes wrong. If something goes wrong or is late open question, then you need your title deeds. You may have to reconstitute them from looking at the land registry, get copies of old documents that who knows if this thing goes to court. Then the judges are gonna want to see the title. These they're not particularly interested. What slanderous you red line say is we'll see you later. So what's on the site? Are there any gates have been in the fences? Has the way ever being interrupted? There have been recent cases over the level of interruption. Interruption has to be noticeable and it can't be done on Christmas A terribly. You've got to have signs and clear obstruction, but much more than that in order to stop the public gaining a right of way over something. So they have a common role or implies dedication over a period of 20 years. The next thing it is your Section 38 highways Act dedication, and it could be that the builder has. This is a condition of planning that they must have a Section 38 dedication out before the dwellings, all units brought into occupation. But sadly, we've seen a lot in the press about pets listers used by builders. Often it is the case that sisters don't point this to their clients. I still induced history, sold his sold ouf 175 plots for his client the builder. I'm not one of the block. Personal blisters had pointed out that there was no Section 30 18 force, and it was a condition of planning that there was enforced before the road was constructed or developed dwellings rocket provide. Not one of I raised that point, why he caused the council mortgage lenders. UK Finance in the guidance says that as long as there is no obligation on the builder to procure the adoption of the road, they don't need to be notified. And here we have a problem with blisters and convinces often think that the deciding factor as to whether something is acceptable or not is whether CML Handbook has everything about it. They have to clients for your from one is your client the pain one. The other one is the lender. Lenders interest different for your client. The client will want to live in that property, walk back and forwards along the road and have a road that is not full of holes, potholes and trains that blocked. They will want to get the full purchase price for the property that they paid. They won't want to lose any money whatsoever. In contrast, the lender is only cared about the amount of mortgage outstanding, which maybe only 50 to 70%. They know that you can sell anything if you re possessive if you as long as you take a hit on the price. And they probably won't care if they get 90 or 85% of the purchase price along with their mortgages paid, they won't live on the property. They won't have to push, push chairs across potholes or unblock drains, so you can see that it's important to realize that is not simple. CML handbook Happy with this, you got to make clear and guidance of the clients about the effect of taking over property where there is no Section 38 agreement on that it organs horribly wrong, you told them, and they can't say, is your fault. Now, with their military grade rose tinted glasses, they'll believe anything the agent says on politically. The builder made the erectile builder, and they can trust building to comply with their obligations. Sad to say that come across many very good rectal builders who have member into the intersection 38 degrees because simply nobody forces them to do it on. Why would they spend money and accept obligations mentees forcing you to do it? They may come back as a matter of PR to repair things, but ultimately it could be the sponsors of enjoying editors. If your kind has a contraction obligation with the original builder on your client is the original purchase on the original builder hasn't gone bust, then you may have an impossible right, but of course, it's not going to be simple. Your client is going to house and several £1000 on litigation peas, and it's not gonna work unless you get everybody else on the road to join in a class action builder. Oh me is by telling clients and making sure they appreciate this is the best. If your kind is the second purchaser, things a bit more tricky because your client will have no contractual nexus with the original builder on. Obviously, your client in either circumstance is not a party to the agreement under Section 38 so they can't force the council to do anything Now. In theory, councils can't four section 38 if they exist. If there is extra costs incurred for remedy, any defects in the road they can claim on the bond. However, that's not, in fact, the reality. From what I understood, talking to people in highways departments in local authorities, they simply haven't got the star. They haven't got the money, they're over budget. They're running around trying to cover the holes in the roads they are clearly responsible for, and they don't have the time and manpower resources to enforce bond. And often they're worried the amount of money they would recover under the bond will be last name on that were incurred in during the words the road. It could be that the drains have vanished and it could be much more extensive, so they won't have any political will to spend money on sorting out problems that really in the responsibility of the adjoining owners. So think carefully about putting together some sort of explanation or note or warning to clients in circumstances where they're wanting to go ahead. There. Anything proper semblance of adoption greens and even if there is an adoption agreement, warned them that it is not just a question of bringing up the local council asking for sorting out that it will be quite a long and complicated on that. This is not your build. PayPal. Also don't think that getting your attention is going to work because builds won't let you have on these days. And even if you to get retention is never gonna pay for the cost of doing the road, there's nothing Teoh other than saying to the client. Look, you're taking a punt on this. You're buying a new house, a new development, and you just gotta hope it all works out sweetly. And if it doesn't look at me. So what about other things to think about in relation to roads on adopted Rose? There are lots of other adoptive rivers, as I mentioned on, there is no responsibility. Or maybe you want to do anything about it. The there's no duty of repairman authority. Generally speaking, they have an obligation to carry out such works necessary for the use of the property joining. But it's up to mentor. Disciple is appropriate, and they may decide they haven't got the budget on. They may consider that just having some gravel road down occasionally well satisfied. There are some highways that not responsible for anyone whatsoever. They may have not been used by the public for 20 years. For example, they may be private ways. Private accesses, private tracks. They may be owned by the join the owners on if there are gonna be kind works carried out on it. It's entirely up to the local sorry people joining the property to work out how this is going to be painful. If a private road a highway, it's used by the public and there could be damage caused to or injury cause and a result of non repairs. Then the hungry authority. Do you have a statutory power to carry out works? But again, they can recover the cost from your joining frontage is so What about upgrading of private road? Well, your client can enter into an agreement with the local authority local highway authority, whereby they agreed to pay for the cost of carrying out work. The lead authority will taken into adoption, but again, it's gonna take a long time, is going to be expensive. You might affection do 78 agreements to which allow works to be carried out to a public highway. What about the extent of the highly? Because there are lots of arguments about this, remembering that the highway right separate thing from ownership the highway authority have a statutory or common more vesting in them off the air space used by highway users on such of the grand of the highway at his necessary for them to carry out their statutory obligations. And it is generally thought that the thickness off the road that is the responsibility of the highway authority is only to spade that steep probably a football, too. So it's not everything beneath that. What lies beneath is yours. You generally owned up to the middle. Off the road you have this top tilth is dating, called it off the road, which is maintainable and owned by highway authority of its public highway on the airspace above it, which is vested by common law statute in the highway authority. But you only adjoining land on this presumption of ad media. Asylum is incredibly difficult displaced, but it is possible to displace it if you've got statutory proof, or perhaps is enrolled in the manners rolls of the manners, or it may be in by the public authority. Generally speaking, if a road is there on their offenses are joining it, it will be assumed the rights off highway off the public extends to the fences on either site, provided those fences have been erected by reference to the highway. My choosing my words carefully there on proof of the extent position of the roads will require enders of history. Then I hear you say, But that is where my regulators on the land registry plan will free to the red line on the land rush. Replant, It means nothing at all. Go and have a look at practice. Got 77 Andi also practice Go for five thinking first session prices Guide 77 refers you to rule to 78 That says, As you probably know, the boundaries shown on the red line, Our general only on the exact position as to whether includes the whole or passion are part off on adjoining road is not going to be included. So this rule that they will never include any road or any part of the road wall fence, stream or ditch applies whether you can prove to them that you own the substance or not. They simply will not include any area is subject as public higher, writes in your red line, even though you can show them documentary proof of your ownership of subsoil. And then scary was your brackets. There appear in the guidance showing that you made by plots on a residential estate where there is a private road and the red line will show the fences at the front of the estate. The developer will sell off all the plots off in part, and each plot purchased will get red lines around their land. The developer will still retain a red line around a plot of land showing the road, and he will have a title to it. But that title contains no land. Yes, you have registered title to No Land and the adjoining plot holders Land will include half of the road. Isn't this talk to Toby World of Land Registration? So I said before, Oh, shit. Subsoil is generally again by your clients, especially in the case of private occupation, road gobs of the red line says, And as I mentioned finally in my nose, the medium file, um, rule is a very difficult one to displace. Finally, most only way, always a highway, even if I hasn't been used for decades. It is still a highway, the only way in which highways could be stopped up to by statute. And there are a number of staff, usually ways of stopping it up or ritual long and complicated, expensive. But these have no effect upon me any pre existing prescriptive rights, which will continue to be enjoyed. I hope that has helped you understand highway law and thank you very much.
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