My solicitor has advised me that the development site that I am trying to buy is situated on a private road. What implications does this have for my development?
More often than not, the roads that we drive up and down and the footpaths that we walk upon are “highways maintainable at public expense”. A convenient shorthand for this is to speak of the road as being “adopted”. Actual ownership of an adopted road can be an interesting legal point, but is irrelevant for most of us. The fact that the road is adopted simply means that the local authority is responsible for its repair.
Interestingly, the fact the roads that most of us are familiar with are adopted is not what gives us the right to drive up and down them. What gives us the right to do this is that these roads are legally classified as “highways”. Whilst it therefore follows that all adopted roads are in fact highways, the opposite is not true. There are a number of highways (which you and I have a right to use) which are not in fact adopted. They are both privately owned, and privately maintained.
The starting point when developing on a private road therefore needs to be to determine whether or not the road is in fact a highway. If it is, then as far as rights of way are concerned there should be no difficulty being able to demonstrate to your buyers that they will enjoy a right of way to and from their front door.
Whilst it is possible for a private road owner to specifically “dedicate” their land as a highway, it is more usual for a highway to become dedicated to public use by consistent use by members of the public. If it can be shown that members of the public have passed over a particular road for a period of many years (and the Highways Act sets out a period of twenty years) for getting from one place to another then there will be a presumption that the road owner has offered up the road as a highway and that the public have accepted this dedication.
This will explain two things. Firstly, it will explain why on a number of private estates there are notices expressly stating that the landowner has no intention of dedicating the land as a highway for public use. Secondly, it explains why it is much more unlikely that a close or cul-de-sac would become dedicated as a highway – since the public are not able to actually get anywhere by using it.
Whilst this is the position at common law (and indeed is the position set out in parts of the Highways Act) there is no obligation on local authorities to maintain a register of highways (other than highways maintainable at public expense). In certain circumstances a developer will be keen to demonstrate that a private road is in fact a highway since it makes it easier to intensify its use. More often than not, however, a developer will be content to simply demonstrate that the plot itself benefits from a private right of way over the road.
The acquisition of private rights and easements will be familiar to many developers. In the absence of a formally granted right it is common to argue that “prescriptive” rights have been acquired. In general terms, if someone can demonstrate that they have used a right of way (or indeed any other type of right) for twenty years or more then that right is deemed to have been formally granted.
Being able to demonstrate a prescriptive right of way will entitle the claimant to make a note of the claimed right on the title registers at the Land Registry. It is also fundamental to being able to obtain defective title insurance (which is commonly the aim when it comes to being able to sell a developed property).
When looking at the existing use of a private roadway, a developer should consider whether it is advantageous to try to demonstrate whether the use implies that the road is in fact a highway, or whether a prescriptive right of way has been established in favour of the development plot only. The period of time that needs to be demonstrated is the same, but the effects are different.
One of the important things about a private right of way is that it is limited to the circumstances that are either contained in the formal grant of the right or, in the context that we are now discussing, are limited to the circumstances that surround the claimed right. If you are looking at a single unit development that replaces an existing single dwelling then the right of way that your buyers will need to use in the future will not be different to the right of way that the previous owners have enjoyed. Whilst the issue of “intensification” is beyond the scope of this note, it does not follow that the rights that have always benefitted a single dwelling will be sufficient to benefit the nursing home that you intend to construct in its place. In those circumstances it may be better to direct your efforts to demonstrating that the road is in fact a highway rather than trying to demonstrate private rights of way.
Although in general terms it can be unsafe to rely on assumptions, you should assume that there is a legal right for existing services to exist under a private road. Various Acts of Parliament give statutory undertakers the right of compulsory purchase, the right to acquire a wayleave and a right to enter upon private roads (even if these are not highways). However, developers will usually be more concerned about the private connection between the development site and the statutory undertaker’s own network.
If the existing connection can be utilised then this will generally resolve most issues (subject to potential arguments on intensification of use). Importantly in these circumstances the roadway does not need to be dug up and in not making any new connections you are not impinging on the private road owner’s rights.
If new services need to be run this is another matter altogether and a developer is more likely to find themselves riding on the back of the statutory undertaker to acquire the necessary wayleaves and easements to be able to service their site.
For smaller sites, the best strategy remains trying to collect as much evidence as possible regarding the rights that the existing property benefits from. It will be usual to ask the seller to provide a statutory declaration giving evidence of the use that they have enjoyed as far as rights of way are concerned, and also in respect of services. The next step would generally be to approach a legal indemnity insurer and seek a policy in respect of the absence of a private right of way and/or the absence of a legal easement for services.
Do be warned, however, that the benefit of any such policy will disappear if you enter in to discussion with the private road owners regarding their rights. You should try to find out as much as possible about the road owners and their attitude to development prior to examining title insurance since in some situations it may be easier to enter in a legal agreement with the road owners rather than rely on indemnity insurance.
Please note that this note has been prepared for the purpose of providing general advice in a non-specific situation. All legal advice should be read with caution unless it has been prepared with regard to a particular set of circumstances. It is not intended that this advice is relied upon by any party, and no liability is accepted for reliance.