What is the public’s right to pass over highways?
Joanna Stepien, a solicitor in the Commercial Property Team considers the public’s common law right to pass over highways.
When reporting to clients on a property that they intend to buy or rent, we, as your solicitors will generally confirm whether the property is accessible from a highway and if not, how one gets to the nearest public highway . This is an important aspect of title investigation as the main feature of a highway is that it is open to the public with no exceptions. If access to a property is from a highway, it means that an owner or occupier can enter it without limitations or obtaining anyone else’s consent. The alternative is that the access is gained through private land, over which appropriate rights must be enjoyed.
But what is a highway?
A highway is simply a piece of land (“a way”) over which the public can pass freely. The right itself cannot be limited to certain times or be exercisable subject to a fee or charge, but it can exist only for certain classes of users. For example, a footpath can be a highway but may only be used by pedestrians and not motor vehicles. Over the years the case law has provided many examples of what is and what is not included within certain classes of users, but the principle of free passage by the public over a highway remains unchallenged.
Once it is established that a property abuts a highway the next step is to determine if such highway is maintainable by public expense or privately. A potential buyer or occupier should ensure that its liabilities with respect to a highway are clear, to avoid unexpected expenses in future.
It is also crucial to understand that although everyone is allowed to use a highway in accordance with its designated use, no one can claim to be exercising this right if it interferes with the use by others. If a person obstructs a right to pass by other users, a criminal offence of “obstruction of the highway” is committed.
Local authorities keep definitive maps of the extent of the highway that they are responsible for: if it is on the map it is a highway. There is a highways search that we can do to obtain these maps and a local authority confirmation. However, in rare cases some historic highways may not yet be on the maps. It isn’t definitive, but often there can be a change in materials on the ground where it is the highways authority who are responsible.
As a prudent buyer you should ensure that you understand these rights and know whether or not routes in the vicinity of a property are highways and whether they carry any user restrictions as this can impact on the value of your property.