Summary and implications
Many developers carry out works which affect the highway in some way when constructing their developments. This may be because they need to build, widen or otherwise alter an access to a development. Alternatively, they may need to build under/over a highway or place something upon it, such as landscaping or fencing.
Whilst some highways are created by notice of dedication, where the owner has made a conscious decision to dedicate land as highway, many highways are created by the public walking over the land "as of right" for a 20-year period.
What is and what is not highway is not always clear from physical inspection. The highway is not necessarily just a road or footpath and can include verges and other land surrounding the road or footpath, especially where such land supports the structure of the highway. The extent of the highway should be shown on a highways search obtained from the relevant highway authority.
The Highways Act 1980 gives local highway authorities the power to protect its highways and those using them. It sets a number of criminal offences for those who unlawfully interfere with the highway and the relevant authority may prevent or remove obstructions and unauthorised works to the highway and in some cases recover the costs from the landowner.
"Look but don't touch"
The general position is that the highway should not be built on, over or under or damaged in any way without the consent of the local highway authority. It is an offence for anybody to obstruct the free passage along the highway without lawful authority. The obstructing act must be for "unreasonable use" of the highway and is judged by the duration, extent, cause and purpose of the obstruction.
As a result, any hoarding, objects or structures placed in the highway which would cause an unlawful obstruction can be removed by the local highway authority, which can recover its expenses of doing so from the person who has caused the obstruction.
Building over the highway
It is an offence to construct a building over any part of the adopted highway (whether intended or not), otherwise than in compliance with a licence granted by the local highway authority. Any person who commits such an offence is liable to a fine. If the offence is continued after conviction, the fine is £50 for each day that the offence continues. The highway authority has the power to demolish the building that has been constructed on the highway and to recover the cost from the person guilty of the offence.
Where a development is going to be built on a highway (or part of it), the highway may need to be permanently "stopped up" so that it is no longer highway. A stopping-up order will be needed if this is the case.
Where part of a building overhangs part of an adopted highway (such as a canopy or balconies) an overhang licence will be required.
Where a building already overhangs a highway, that part of the building cannot be altered without specific consent. The degree of overhang of the highway can be very small (even just a metre or less), but consent will still be required.
The overhang licence is usually entered into by the developer and the highway authority and sometimes the landowner (if different to the developer) and mortgagee's consent will also be needed.
The highway authority is free to attach any such conditions as it may consider necessary to ensure the safety and convenience of highway users and to protect the highway. The licence also usually contains an indemnity from the developer to the highway authority in respect of any claims of injury, damage or loss arising from the overhang.
As with most highway licences, the authority can charge a reasonable sum in connection with the grant of the licence and an annual charge for administration.
The licence will usually oblige the developer to construct and maintain the overhang to the authority's satisfaction. If the licence is breached the authority can carry out works itself and recover the cost from the developer. Overhang licences bind successors in title, so compliance should always be checked before purchase of land which is subject to an overhang licence. In extreme cases, where a licence is breached, the authority can demolish the building that has been constructed on the highway.
Consent is also needed to carry out works underneath the highway. This issue arises frequently in London, in particular where cellars and vaults lie, or are to be constructed, under the street.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
