The Highways Act 1980 (the “Act”) governs the management and maintenance of highways in England and Wales. Within this Act, Section 228 (“S228”) grants specific powers to highway authorities, the implications of which are important for both highways authorities and developers alike.
Why use Section 228?
S228 provides highway authorities with the power to declare private streets (including newly constructed roads on private land) as public highways so long as such street would connect to an existing public highway. The power is particularly valuable and utilised commonly in circumstances where land ownership of proposed street works cannot be ascertained.
It is important to note that S228 can only be utilised in respect of ‘street works’ (i.e. not just arbitrarily over unknown private land) – this means that such ‘street works’ need to have first been executed over the land. Street works are defined in Section 203 of the Act as:
“…any works for the sewering, levelling, paving, metalling, flagging, channelling and making good of a street, and includes the provision of proper means for lighting a street…”
The powers outlined above can be useful for both local authorities and private developers.
For local authorities, S228 can be used to enable the delivery of publically funded road schemes across land where ownership cannot be established. For example, establishing ownership of strips of barren unregistered land can prove to be difficult if not impossible, especially where no records or evidence of rights or ownership exist. The powers under S228 can ‘bridge the gap’ to allow newly constructed roads to be adopted over land with unknown land interests.
For developers, S228 can be used to facilitate the delivery of other relevant agreements made pursuant to the Act (such as Section 38 or Section 278 Agreements). Such agreements usually require that a developer has a relevant land interest before a private street can be adopted. Applying this to a residential development scenario: where there is land with unknown ownership, the developer can request that the local authority adopts such land (providing this land forms the connection to an already existing public highway) under S228 to enable the connection of the residential estate to the public highway.
Whilst S228 powers can provide a useful solution to overcome the problem of unknown land ownership, it may be in certain scenarios that indemnity insurance is a better solution and each case should be considered on its merits.
The Procedure under Section 228
The process initiated under Section 228 involves several key steps:
- Works and Inspection: whilst the street works are being undertaken on the subject land, the highways authority will usually monitor and inspect such works to ensure that they are undertaken to the standard required for adoption.
- Notice of Intention: once the works have completed, the highway authority must post a notice on the site of the street works to indicate the authority’s intention to declare the street as a public highway. Whether the local authority or developer is applying to the highways authority, both should ensure that satisfactory due diligence is carried out to ascertain ownership of the street – failure to do so raises the risk of objections and could result in increased delays and costs.
- Objection Period: upon serving the notice, there is a stipulated objection period of one month during which any objections can be raised by any valid owner(s) of the site. If there is more than one owner of the site, the majority of owners must object for an objection to be successful. Objections must be provided by notice to the highways authority.
- End of Objection Period: if no objections are received during the objection period, the street becomes a publically adopted highway at the end of the objection period.
- Hearing of Objections: If objections are raised, the highways authority has two choices. Either it can: (a) apply, within 2 months of expiry of the objection period, to the magistrates court for an order to overrule the objection or (b) let the 2 month period lapse and the street will consequently not be adopted.
- Court Hearing: the details of court process and appeal are beyond the scope of this article, however if the highways authority is successful then the road will become a publically adopted highway.
Further Information
Sharpe Pritchard’s real estate team offers advice and guidance to highways authorities and developers across the full spectrum of property and planning related issues. If you would like to discuss the process and/or your legal options in connection with anything contained within this article, please contact James Mallery-Nelson (jnelson@sharpepritchard.co.uk) or on 0207 405 4600 for a free initial consultation.
This article is for general awareness only and does not constitute legal or professional advice. Law and guidance relating to property and highways is continually being updated and the law may have changed since this page was first published. If you would like further advice and assistance in relation to any issues raised, please contact us today by telephone or email.
