FREE CHAPTER from ‘A Practical Guide to Highway Issues in Property Transactions’ by Alastair Frew

CHAPTER TWO – WHO CAN USE A HIGHWAY

Given that any of Her Majesty’s Subjects may pass and re-pass along a highway, as often and whenever they wish without let or hindrance and without charge, it should be the case that anyone can use any highway at any time. Oh, that life were so simple.

Until the invention of motorised transport, it was true that all highways were available to all users, albeit some highways were too narrow or too steep for even the hardiest horse and cart driver.

As soon as we had cars, and to a lesser extent the steam traction engines that preceded them, we started to have distinctions between types of highway.

Nowadays, there is quite a list:

  1. highways just for pedestrians

  2. highways for all persons including wheeled traffic;

  3. highways for pedestrians, bicycles, horses, cattle and sheep;

  4. highways for wheeled vehicles, where horses, pedestrians and cyclists are prohibited – these are Special Roads, such as motorways;

  5. highways where Her Majesty’s Subjects can be charged for access. These are Concession Roads – toll roads – such as the Birmingham North Relief Road (known as the M6 Toll).


Highways Just For Pedestrians

This category can easily be split in two:

Footpath – this is a highway which may only be used by pedestrians, and which is separate from a vehicular carriageway;

Footway – this is part of a highway, but which cannot be driven along by vehicles. Typically, this is the pavement or verge at the side of the road. While it is generally illegal to drive on a footway, nothing is ever quite that straightforward, and will look at the thorny issues of parking on the pavement and accessing your own driveway, a little later on.


Highways for all persons including wheeled traffic

This is your standard road. Almost all roads are open to all traffic, albeit they are often subject to various local prohibitions such as bus-only or cycle-only lanes, or perhaps maximum weight restrictions.


Highways for pedestrians, bicycles, horses, cattle and sheep

The ancient bridleway, as the name suggests, was open to horses as well as pedestrians. They are also open to cattle and sheep, and it is permitted to ride a bicycle along a bridleway. Occasionally, a new stretch of highway will be opened that is specifically open to pedestrians, cycles and horses, such as the bridge over the A38 at Weeford in North Warwickshire.

You may come across the term “drove road” or “driffold”. These are the remnants of the ancient seasonal roads that were used for driving (we might say, herding) cattle from one pasture to another. Ancient drove roads are often quite easily identified out in the countryside, as they are fairly narrow roads with generous green verges, but with a stone wall on either side; perfect for herding hungry cattle, who could snack on the verges as they walked along. Typically, such drove roads are now highways open to all traffic, rather than just pedestrians and animals. They are often unadopted, and therefore somewhat difficult to pass along.


Special Roads

After several thousand years, our road network was suddenly expected to cope with the new-fangled invention of the high-speed motor car. Our road network was not able to cope, so a new network was planned and built for the first time – the motorways. Pedestrians are prohibited, as are low powered vehicles, on the very obvious grounds of safety.


Concession Roads

Once the motorway network had been built, the nation still needed more roads. Our appetite for travel seems to be insatiable. The Government of the day decided that the next motorway to be built should pay for itself, just as the bridges over our main river estuaries have had to. From this decision was born the Birmingham North Relief Road, commonly known as the M6 Toll. It is a highway, but by Act of Parliament a toll may be charged. Unlike other highways, if you don’t pay, you cannot use it.


The problem of Bicycles

I am a keen cyclist, but I don’t cycle on the pavement (footway) because it is dangerous. It is also illegal. Young children may cycle on the footway, but adults cannot although a blind eye may often be turned to an adult carefully accompanying a child.

Cyclists may use bridleways but have no public right to use footpaths. There is much confusion surrounding this, because many hundreds of miles of footpath are also cycleways, but this just means that the stretch of path has been given two designations – highway (footpath) and also private right or easement open to a class of users (permissory cycleway).

Recently, special cycle tracks have been introduced, where cyclists are permitted and have right of way. There are also “shared space” designations, where cyclists must ride on one side while pedestrians must walk on the other.


Mobility vehicles

Common sense applies to the rights of mobility vehicle users; they may use footpaths and footways and are allowed to use the carriageway of all roads apart from Special Roads. Driving a mobility scooter on a motorway is not a good idea.


Highways and Private Rights

Just as a footpath may be used by cyclists if an additional permission has been granted, so any highway might also be the subject of additional private rights.

For example, anyone walking along a public footpath (which is a highway) as it crosses a farmyard, would be well advised to look out for heavy lorries driving along the path. While it is illegal to drive along a footpath, it is perfectly lawful to do so if the owner of the path has granted a private right. Perhaps the farmer owns some commercial units, which have been let out to a haulage company. Perhaps, the farm is so long established, that various neighbours have prescriptive easements over the farmyard for gaining access to their homes which pre-date the highway designation. In each case, that would allow vehicles to be driven lawfully along a public footpath. A private right can exist alongside the public right of highway.

In the same way, the owner of a pedestrian shopping precinct will usually allow commercial delivery vehicles to drive across the pedestrian areas at certain times of day, even though some of the precinct will be highway, designated for pedestrian traffic only.


Village Greens and Common Land

A village green may also be a highway. This is can cause confusion, as it is unlawful to drive on a village green, but it is lawful to drive on a highway. The green in question may have been designated as highway at some point in the past, and in such cases the green itself may have been nibbled away by highway improvements until there is very little left to see.

By contrast, a highway may not cross common land. It is illegal to drive on common land – although as with public footpaths, it is open to the owner of the common to grant private rights. Therefore, frontagers are able to acquire prescriptive rights to drive over a common.

Furthermore, in direct contradiction to the paragraph above, many commons are crossed by highways. This is a relic from times past; it is no longer possible to designate a road which crosses a common as a highway.

The legal position has seesawed over the last few decades.

The Law of Property Act 1925 s193 made it illegal to drive a vehicle on common land, and s34 of the Road Traffic Act 1988 prohibited anyone from driving a vehicle in order to access the owner’s home, if the distance was less than 15 metres. Long distance travel over common land could be permitted by the common owner, but for short distances, the homeowners were expected to park up and walk.

Lawyers used to assume that if someone had openly driven over the land for 20 years without asking for permission and without using force, then they would have established a prescriptive easement. Then in the early 1990s, the Court of Appeal handed down its judgment in the case of Hanning v Top Deck Travel [1993] 68 P&CR 14. This judgment turned the law on its head; prescriptive easements were not possible, as the act of driving on a common was illegal. The owners of various commons, often local authorities, started asking homeowners to pay considerable sums of money to be allowed to carry on driving to their homes.

The law was in a muddle and needed to be changed.

At the turn of the century, the Countryside and Rights of Way Act 2000 was enacted, and s68 attempted to address this problem. A statutory framework for purchasing an easement from an unwilling common owner was created. Payments of 10% of the value of the home had been demanded, but the new framework limited this to a range of 0.25% – 2% of the value of the property.

While very welcome, this framework was not quite good enough, and has now been repealed.

In 2004, the House of Lords, in the case of Bakewell Management Ltd v Brandwood and others (www.bailii.org/uk/cases/UKHL/2004/14.html) finally overruled the judgement in the Hanning case and held that it was after all possible to obtain a prescriptive easement over common land.

Common sense has prevailed, and homeowners who had been driving to their homes for a generation or more could continue to do so without being held to ransom. Any new easements that might be required are left to open market negotiation.

As for driving across a village green, where it is not also a highway, an important point was made by the Court of Appeal in Massey and Drew v Boulden [EWCA Civ 2002 1634].

The Court held that it was possible to obtain a prescriptive vehicular easement over a registered village green. In this particular case, the Court noted that the user did not injure the village green or cause any material interruption to its wider use and enjoyment. In any event, the prescriptive use predated the registration of the green, so this case may simply be authority for the wider principle that land can be given two use classes at once – some land is pedestrian-only highway, while also having private vehicular easements over it, while in Massey v Bouldon, the land became a “car free village green” while already subject to established (if unclaimed) vehicular rights.


What about Bridges?

Bridges are another special case. If a bridge carries a highway, the bridge is usually (but not always) also a highway.

However, it is perfectly possible for a privately-owned bridge to carry an adopted highway. There are hundreds of old bridges, constructed as part of the canal and railway networks, and then sold off as surplus to requirements by the railway and canal operators. Such bridges are now privately owned.

If the bridge is physically part of the highway, but the structure remains in private ownership, then the duty to maintain the bridge includes the next 300 feet of carriageway on either side of the bridge structure. This can impose a significant burden on the owners of old bridges, which were built for horse and cart traffic but now carry motorised traffic.

In 1999, the laden weight limit for lorries was increased from 38 tonnes to 44 tonnes, on the basis that new lorries have more axles, so there was no increase in weight loading. Many old bridges were simply not designed for this extra weight, and private bridge owners were entitled to ask the highway authority to upgrade the structure of any bridge that had not been designed to carry more than 24 tonnes.

In many cases, the highway authority declined to pay for the engineering works but instead imposed weight or speed limits over these old bridges. This has led to a plethora of road signage on country lanes. Given how regularly the speed limit is ignored, one wonders how often these weight limits are discretely ignored as well, causing our old bridges slowly to buckle under the force of the traffic passing over them? It remains the case that old bridges typically collapse under the force of flood water rather than heavy traffic, but it is nonetheless an area for concern. In February 2020, the RAC Foundation Bridge Maintenance survey indicated that more than 3,000 bridges in the UK were substandard, being incapable of safely carrying a 44tonne lorry. While there are more than 70,000 publicly owned bridges in this country, as well as many privately-owned ones, this figure of 3,000 is still somewhat alarming.

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