Stopping Up Orders and Removal of Highway Rights
When roads/footways/verges/land are maintained by the Highway Authority this is because they have highway rights across the surface. Highway rights mean that the public has a right to ‘pass and repass’ over the land.
If you wish to close or divert a highway then these rights would need to be removed.
Please note that the Highway Authority has a general presumption against removal of highway rights on verges.
Land Ownership
Land ownership is a seperate issue. The owner of the sub soil is often not the Highway Authority, as in Essex County Council. To find out who owns the sub soil of a piece of land you would need to go to the Land Registry. They do charge for this service and can advise you of the likely cost when you contact them. If the removal of highway rights is successful then where the owner of the sub soil is known you will need to negotiate a transfer of the land to yourself. Where the owner of the sub soil is not known and cannot be found, there is a legal presumption that the owners of the adjoining properties own the subsoil beneath the former highway out to the centre line of the former highway. It may be prudent for you to take independent legal advice with regard to land ownership issues before you proceed any further.
Highway Rights can be removed under two different Acts.
Removal of Highway Rights under Section 247 of the Town and Country Planning Act 1990.
Under Section 247 of the Town and Country Planning Act a ‘stopping up’ Order to remove highway rights can be made by the Secretary of State for Transport if it is necessary to facilitate a development. Section 247 is also used for the provision of replacement highways and the improvement of existing ones. Examples where Section 247 might be used:
- Extension of building on property requiring part of highway to be used
- Demolition of footbridge or filling in of subway
- Estate redevelopment where layout changed or status of highways to be altered
- Commercial development when highways within site need to be relocated.
The cost of any diversion of any Statutory Undertakers apparatus and/or the cost of entering into any wayleave/easement agreement is also to be met by the applicant.
When a planning application expires (after 3 years) and development has not taken place which is linked to the stopping up order from the Government Office-then a new stopping up Order with a new planning permission needs to be completed by the applicant.
Removal of Highway Rights under Section 116 of the Highways Act 1980
Where areas of public highway are considered by the Highway Authority, to be surplus to highway requirements the highway rights can be extinguished (cancelled) by an order made by the Magistrates Court under Section 116 of the Highways Act 1980. When an order is made, this terminates the highway rights and frees the land from Highway Authority control and enables it to be enclosed or developed, subject to planning permission.
Section 117 is the means whereby an individual who wants a highway to be stopped up or diverted can ask the Highway Authority to make an application under Section 116 to the Magistrates Court. If the council agree to make the application they will under Section 117 as a condition of making the application ask the applicant to make provision for any costs incurred by them in connection with the matter as they deem reasonable (i.e. administrative, technical, legal and engineering). These costs are to be paid up front.
As of 2013 the costs are approx. £4,000 plus any costs charged by the Court. The cost of any diversion of any Statutory Undertakers apparatus and/or the cost of entering into any wayleave/easement agreement is also to be met by the applicant.
An Order cannot be made by Magistrates without the consent of the District/Borough and Parish/Town Councils where the highway is unclassified or is a public right of way. For information and enquiries please email us or you can write to us at the following address.
Land Charges and Searches
Essex Highways
Springfield Highways Depot
Colchester Road
Chelmsford
Essex
CM2 5PU