Applications can be made to consider the removal of any statutory highway considerations and obligations over a parcel of land. This process is known as “Stopping Up”.
Stopping up highway considered land is undertaken by Section 117 of the Highways Act 1980.
Process for application
- Applications for a Stopping Up Order must be made to the Magistrates Court.
- Evidence must be provided as part of the application that the land was no longer required for public use including any by public utilities.
- A plan must be submitted to indicate the area under consideration.
- The application will need to undertake an agreement with the local authority to pay all reasonable costs resulting from the application. This currently between £6500 - £10000.
- The process can take up to 18 months to complete.
Considerations when making an application
The main points to consider before deciding to apply are as follows:
- Ownership: In many cases the Highway Authority is not the owner of the land (the subsoil) over which the highway runs, in these cases the applicant will have to establish ownership in order to negotiate the transfer of said land. HM Land Registry may be able to provide you with details of the current registered owner. Where the owner of the subsoil is unknown and cannot be found, there is a rebuttable presumption in law that the owners of the adjoining properties own the subsoil beneath the highway up to the centre line of the road (the neighbour on the opposite side owning the remainder). This is more often the case with older areas of highway. In such cases, where the applicant is the owner of the adjacent land, the extinguishment procedure may be sufficient to allow them to acquire some of the land without a formal transfer of Title in the land. On recent or new developments the land often still belongs to the developer or builder. It may be prudent for an applicant both to ascertain the owner of the land and to negotiate any costs involved prior to extinguishment procedures being commenced.
- Declaration of Intent: Proposals to stop up a section of highway have to be made known to the public, usually by advertisements in the press and posting notice on the rights of way affected. Where the road is not a classified road, District and Parish councils also need to be informed of the intention to apply for an order, and if either body, within the following two months, sends a notice refusing the consent, the application cannot be made. All Statutory Undertakers with apparatus in the highway affected by the proposals must be given notice of them (performed by the applicant, which responses presented to the Council). Such undertakers retain the rights to maintain and repair their apparatus even though it is no longer under a highway, they will also retain a 24 hour access to their plant. These utility companies or any of the emergency services may object to the application, as might any member of the public. The cost of any necessary diversions to utility company’s plant will need to be met by the applicant.
- Rights of Access: The local authority may reserve its right to enter onto the land at any time for the purpose of cleansing or maintaining the highway drainage in accordance with their powers under section 100 of the Highways Act 1980.
- Magistrates Decision: The Magistrates may find that there is insufficient evidence to warrant the closure; they almost always refuse to stop up a highway (or parts thereof) if there are any reasonable objections from members of the public or utility companies.
- Future maintenance: All maintenance, including street lighting and drainage, would be the responsibility of the owners.
- Key Tests for applications: Two key tests will be considered when considering the application:
- That the highway is no longer necessary.
- That the highway can be diverted so as to make it nearer or more commodious to the public.
- Costs: Even if the application is unsuccessful the applicant would still be expected to meet the full costs of the action. This is due to the fact that most of costs incurred are external to the council/highway authority.
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