What actually constitutes a "highway"!?

What actually constitutes a "highway"!?

Postby neilrlsmith » Thu Mar 29, 2012 1:36 pm

This is an interesting one. We want to put up a 1.8m high gate to secure our property. I appreciate that to do this under PD you need to 'not be adjacent to a 'highway'. How far back from the highway is not specified and is open to interpretation. Our issue is this. The driveway from where the gate will be to the 'highway' (8m in length so plenty of distance away) is not owned by us. For all intents and purposes it is our driveway. It is a driveway that leads off the 'highway' and enters our house (it only leads to our house!). The planning officer suggested that I find out if this piece of land was a 'highway'. That was easy. It is not, and neither is the road it joins. It and the road are private. So I though great - up go the pillars. But no, calling back and speaking to a different officer they say that the interpretation of 'highway' is ambiguous and that it's not clear whether 'highway' means public highway (which in my case I need it to mean!) or whether it means a road frequented by cars. In that case the private road is frequented by cars although the private bit that leads to my house is not.

I may have answered by own question here but I have not had much luck with this council and I'm worried they may start looking for some loophole.

Any reassuring comments welcome (assuming I've been clear!!)
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Re: What actually constitutes a "highway"!?

Postby Roblewis » Thu Mar 29, 2012 1:49 pm

Pilman will be more specific but I think planning and the HA can only look at the access point onto a recognised public highway. They can however make restrictions on the number of vehicles per given period accessing onto a public highway. You are not adding more accesses and unless they can prove the road is subject to their control they cannot stop your gate erection at any suitable height below 2m. Ask them to provide their views in writing specifying precisely under what legislation and/or national guidance they are drawing their powers to operate in this circumstance. Make sure the answer is written not verbal.

There were some appeals to the Planning Inspector re a site in Elmbridge where the definition of Highway was discussed and the definition arrived at was a follows:

There is no definition of the word "highway" in the GPDO 1995, although a
"proposed highway" is defined at Article 1(2) as having the same meaning as in
s329 of the Highways Act 1980. Section 336 of The Town and Country
Planning Act 1990 defines "highway" as having the same meaning as in the
Highways Act 1980. However, The Highways Act 1980 does not define the
word and so provides no further assistance . The common law meaning of a
highway is a way over which all members of the public are entitled to pass and
repass

This is the reference

APP/K3605/X/07/2039388
Estate Road, Foley Woods, Foley Road, Claygate, Surrey, KT10 OLU

This suggests your access route does not comply with this definition. You could therefore use this to remind your LA they have no powers
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Re: What actually constitutes a "highway"!?

Postby neilrlsmith » Thu Mar 29, 2012 2:23 pm

Thanks.

Having had an anonymous conversation with a very helpful planning officer he advised me that in 2010 it was part clarified to say that highway can be a highway whether adopted or not. Therefore the private road we live off will be considered a highway. HOWEVER...the real issue he believes is whether the driveway leading off the road to our house (which is private but not owned by us) is taken in to account. He has stated that they would need to refer to their legal team to find out whether there had been any cases decided. If they cannot find a case that gives a precedent PD will be refused.

I cannot have this refused as I will not get this gate through Planning as I'm in a conservation area. He told me that onus is on us to prove that we are legally entitled and advised me to find case law to support it!!

Where do I go now!??
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Re: What actually constitutes a "highway"!?

Postby neilrlsmith » Thu Mar 29, 2012 2:33 pm

neilrlsmith wrote:Thanks.

Having had an anonymous conversation with a very helpful planning officer he advised me that in 2010 it was part clarified to say that highway can be a highway whether adopted or not. Therefore the private road we live off will be considered a highway. HOWEVER...the real issue he believes is whether the driveway leading off the road to our house (which is private but not owned by us) is taken in to account. He has stated that they would need to refer to their legal team to find out whether there had been any cases decided. If they cannot find a case that gives a precedent PD will be refused.

I cannot have this refused as I will not get this gate through Planning as I'm in a conservation area. He told me that onus is on us to prove that we are legally entitled and advised me to find case law to support it!!

Where do I go now!??


EDIT: They have advised me to hire a planning agent who will hunt down case law. However if I can find someone on this forum that knows of a case it might save me some money :)
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Re: What actually constitutes a "highway"!?

Postby arborlad » Thu Mar 29, 2012 2:43 pm

neilrlsmith wrote: It is a driveway that leads off the 'highway' and enters our house (it only leads to our house!) .


.............then I don't think it will meet this criteria:

Roblewis wrote:The common law meaning of a
highway is a way over which all members of the public are entitled to pass and
repass

arborlad

smile...it confuses people
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Re: What actually constitutes a "highway"!?

Postby Roblewis » Thu Mar 29, 2012 10:00 pm

Yes - to extend arborlads comments - the public is not ENTITLED to pass and re pass on a private road and this access route leads purely to your house. It is not therefore a highway and you should give your PO details of the case reference number and remind him/her that there were two parallel appeals - THIS IS CASE LAW and you are hereby offered it FOC. The inspectorate seem keen to stop PAs from extending their definition and I expect that the result above must be followed unless your LA wish to take matters to a superior court. This would seem unlikely in that you are below the normal planning height of 2m albeit in a conservation area.

You can always google " meaning of highway planning" as the search term.

Do not forget that the planning inspectorate still currently accepts appeals against planning refusals
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Re: What actually constitutes a "highway"!?

Postby pilman » Sun Apr 01, 2012 2:08 pm

If they cannot find a case that gives a precedent PD will be refused.
This is a back to front interpretation of the law as set out in the Town and Country Planning (General Permitted Development) Order 1995.

It also fails to comprehend the reason why the Highways Act 1980 refers to highways maintainable at the public expense, which is that all such roads need to allow free access for passing and repassing to all members of the public.

The private access road that was described by the OP cannot be a highway that will meet any of the requirements set out in the Highways Act.

There was another quote
he advised me that in 2010 it was part clarified to say that highway can be a highway whether adopted or not
which although factually correct does not mean what you take it to mean.
If a highway is created by the fact that members of the public have used the route as of right for a period of 20 years, that will mean there is public highway status even though such status has never been recorded.

That is what happens when public footpath or bridleway status is claimed and a strict procedure is then started to show the status on definitive maps kept by local highway authorities.
Prior to the completion of the formal process to modify the definitve map and statement, such "highways" are not adopted, even though the evidence proved highway status by 20 years user.

To consider that can be the case for a private access drive leading to a single house is absurd.

The problem with planning law is that too often it depends on interpretation, which means that Planning Officers express a personal viewpoint as though it were in fact the law.

Part 2 of the GPDO refers to Minor Operations, with Class A for fences and walls and Class B referring to a means of access to a highway.
Both classes use the word "Highway"
Development not permitted is defined in Class A1(a)
A.1 Development is not permitted by Class A if—
(a)the height of any gate, fence, wall or means of enclosure erected or constructed adjacent to a highway used by vehicular traffic would, after the carrying out of the development, exceed one metre above ground level;
which is where the phrase "adjacent to a highway used by vehicular access" needs to be interpreted.
Class B is one single sentence
Class B Permitted development
B. The formation, laying out and construction of a means of access to a highway which is not a trunk road or a classified road, where that access is required in connection with development permitted by any Class in this Schedule (other than by Class A of this Part).

Here the use of the word "highway" confirms that a trunk road is a highway, as is a classified road.
Access can be created to any other type of highway, which has to imply that this means a public highway, because the GPDO is a Statutory Instrument passed by Parliament to control land use where it applies to public highways, not to private land under the control of private land-owners.

Virtually every private drive serving a house in England in 2012 will be used by vehicular traffic, which shows just how nonsensical it would be if the GPDO applied to every such private drive that is not directly
adjacent to a public highway used by vehicular traffic having a lawful right to use that highway.

The concept that it is up to the local council to decide what permitted development rights can be exercised by a private land-owner goes against the whole concept of the Government granting permitted development rights for "minor operations"

Public Acts of parliament that refer to highways, relate to a public highway which is to be maintained by the public purse, because that huighway can be used by any member of the public wanting to use it.
A private road will not often be a public highway, and a private road leading to a single house will never be a public highway.

Controlling the erection of a gated entrance to a private house at the end of a private drive cannot have been the intention of Part 2 Class A of the GPDO 1995.
The Planning Officer's personal interpretation is wrong and one I would certainly ignore if I wanted a gate erected on my entrance off a private drive.

It would then be up to the LPA to issue an enforcement notice claiming a breach of planning control, but they would then have to prove that their interpretation of the law is valid, whereas the sole claim for the person served with a notice and appealing the notice would be that it is clearly permitted development under Part 2 Class A of the GPDO.

I cannot imagine that any LPA will take that action based on the facts stated in this posting.
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Re: What actually constitutes a "highway"!?

Postby Roblewis » Sun Apr 01, 2012 9:02 pm

Pilman

Would the Conservation Area status affect your narrative argument. I totally concur with your overall opinion though as I think the PO concerned was almost arguing ad absurdem. The Planning Inspectorate for me have set a pretty clear interpretation of the state of the law as it should be undertstood and intepreted by POs. I cannot, like you find any sensible justification for their actions. The OP is in a bind though because to act in a conservation area does require planning consent does it not? Or am I wrong there and permitted developments can go forward without PC in such areas?
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Re: What actually constitutes a "highway"!?

Postby pilman » Sun Apr 01, 2012 9:27 pm

A local planning authority have to make a declaration thet the conservation area is to be protected under Article 4 of the GPDO to stop permitted development in a conservation area.

Some LPA's do this, many don't.

Asking the local LPA if there has been an Article 4 declaration before carrying out any development in a designated conservation area is a sensible idea.
If there is no Article 4 declaration then a conservation area is treated the same as any other part of the district.

The entire Statutory instrument from 1995 is on this web-site.
http://www.legislation.gov.uk/uksi/1995 ... tents/made

Part 2 has not been amended since 1995, although Part 1 was amended in 2008.
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Re: What actually constitutes a "highway"!?

Postby neilrlsmith » Mon Apr 02, 2012 7:07 am

Thank you for this. To qualify the conservation area part...We have not had PD restricted due to article 4. Indeed we have been granted PD for a rear extension so PD is allowed on our property. My concern (although that is diminishing now) is that if PD failed we would almost certainly fail under a PA as we live ADJACENT to a conservation area.

In terms of next steps for me. The PD is in and is being considered. I could just leave it and let it play out. OR I could blind them with case law, statutory wording which potentially could raise issues/problems that perhaps should be kept quiet.

Also, Pilman said...

"It would then be up to the LPA to issue an enforcement notice claiming a breach of planning control, but they would then have to prove that their interpretation of the law is valid, whereas the sole claim for the person served with a notice and appealing the notice would be that it is clearly permitted development under Part 2 Class A of the GPDO."

Is this suggesting that if they decline PD, I should build it anyway? I like that idea!

So two questions please. 1) What's my strategy whilst it's being reviewed and 2) Shall I build it anyway if they decline it?
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Re: What actually constitutes a "highway"!?

Postby andrew54 » Mon Apr 02, 2012 8:38 am

neilrlsmith wrote:Thank you for this. To qualify the conservation area part...We have not had PD restricted due to article 4. Indeed we have been granted PD for a rear extension so PD is allowed on our property. My concern (although that is diminishing now) is that if PD failed we would almost certainly fail under a PA as we live ADJACENT to a conservation area.

In terms of next steps for me. The PD is in and is being considered. I could just leave it and let it play out. OR I could blind them with case law, statutory wording which potentially could raise issues/problems that perhaps should be kept quiet.

Also, Pilman said...

"It would then be up to the LPA to issue an enforcement notice claiming a breach of planning control, but they would then have to prove that their interpretation of the law is valid, whereas the sole claim for the person served with a notice and appealing the notice would be that it is clearly permitted development under Part 2 Class A of the GPDO."

Is this suggesting that if they decline PD, I should build it anyway? I like that idea!

So two questions please. 1) What's my strategy whilst it's being reviewed and 2) Shall I build it anyway if they decline it?


Why do you say "The PD is in and is being considered." If you have permitted development rights you are permitted to do the development. No application is necessary.

If PD does not apply, then you can apply for permission. Being adjacent to a conservation area means you are outside of that area, so makes little or no difference. What reasons do you think they would have for refusal? Will your proposal look horrid from the street?

And yes, I think pilman is suggesting you carry out the work without permission. Why not?

I am not keen on people ignoring planning regulations, but please don't think that your local planning department are God. Their interpretation of the regulations might not be correct, and their advice is just that - only advice. If you think you have permitted development rights to do something, then do it, you do not need to contact the planning department at all.
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Re: What actually constitutes a "highway"!?

Postby neilrlsmith » Mon Apr 02, 2012 8:46 am

andrew54 wrote:
neilrlsmith wrote:Thank you for this. To qualify the conservation area part...We have not had PD restricted due to article 4. Indeed we have been granted PD for a rear extension so PD is allowed on our property. My concern (although that is diminishing now) is that if PD failed we would almost certainly fail under a PA as we live ADJACENT to a conservation area.

In terms of next steps for me. The PD is in and is being considered. I could just leave it and let it play out. OR I could blind them with case law, statutory wording which potentially could raise issues/problems that perhaps should be kept quiet.

Also, Pilman said...

"It would then be up to the LPA to issue an enforcement notice claiming a breach of planning control, but they would then have to prove that their interpretation of the law is valid, whereas the sole claim for the person served with a notice and appealing the notice would be that it is clearly permitted development under Part 2 Class A of the GPDO."

Is this suggesting that if they decline PD, I should build it anyway? I like that idea!

So two questions please. 1) What's my strategy whilst it's being reviewed and 2) Shall I build it anyway if they decline it?


Why do you say "The PD is in and is being considered." If you have permitted development rights you are permitted to do the development. No application is necessary.

If PD does not apply, then you can apply for permission. Being adjacent to a conservation area means you are outside of that area, so makes little or no difference. What reasons do you think they would have for refusal? Will your proposal look horrid from the street?

And yes, I think pilman is suggesting you carry out the work without permission. Why not?

I am not keen on people ignoring planning regulations, but please don't think that your local planning department are God. Their interpretation of the regulations might not be correct, and their advice is just that - only advice. If you think you have permitted development rights to do something, then do it, you do not need to contact the planning department at all.


Ok, I'll rephrase. PD is in and, like many people, I am uncomfortable 'building' something that may/or may not be PD, hence the reason for Certificate of Lawfulness. So yes, they are considering whether it is lawful.

As for the Conservation area and PA. This is their subjective opinion and they've told me that they will look at the conservation area in it's entirety and what effect my gate will have on it. As I say, Planning will almost certainly be refused. But it doesn't look like it will come to that!
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Re: What actually constitutes a "highway"!?

Postby pilman » Mon Apr 02, 2012 12:04 pm

I would definitely consider that an application to see if certain development is permitted development is a complete waste of time, unless there is considerable doubt about what is allowed and therefore granted planning permisison by the GPDO Part 2 Class A.

In the circumstances you have described I would have never considered that the erection of the gates at the end of a private drive leading to a single dwelling involved any development adjacent to a highway used by vehicular traffic.

The thought that someone has now paid a fee for a Certificate of Lawfulness seems totally absurd, as does the concept that an Officer employed by an LPA considered that a private driveway is a highway used by vehicular traffic.

Just so the OP is clear about my advice as a retired planning consultant, I would have never hesitated to have had the gates erected, as planning prmission has been granted by the Government under Part 2 Class A of the GPDO, published as a Statutory Instrument in 1995.

I do not consider that such development can be described as falling within the type of development not permitted under A1(a).

A.1 Development is not permitted by Class A if—
(a)the height of any gate, fence, wall or means of enclosure erected or constructed adjacent to a highway used by vehicular traffic would, after the carrying out of the development, exceed one metre above ground level;


I have never known a private drive to be considered a highway by any one of the many LPA's I have dealt with in my professional career.
The fact you made an application for permitted development astounds me, as does th efact that a planning officer considers that a highway used by vehicular traffic is any private road over which a car passes.
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Re: What actually constitutes a "highway"!?

Postby neilrlsmith » Mon Apr 02, 2012 1:51 pm

@Pilman

Had I been a retired planning consultant and possible expert then I too would probably not have applied for permitted development. However I am not and therefore like most other conscientious individuals, sort the advice of experts. Hence me posting in this forum. In future I will try other resources as I wouldn't want to feel stupid by posting further 'absurd' applications.
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Re: What actually constitutes a "highway"!?

Postby pilman » Mon Apr 02, 2012 3:32 pm

My apologies for stating my opinion in a way that has upset you.

It is just the fact that the Government has granted planning permission for certain developments that are set out in the GPDO.

That is why I pointed you in the direction of that Statutory Instrument.
Certain planning officers do influence people with no experience of the planning system by expressing a personal view point that is not a true reflection of the current planning law as set out in the Town and Country Planning Act and the Town and Country (General Permitted Development) Order.

I allowed my annoyance of these types of officials to colour my earlier posting.

I did not mean to reflect your lack of knowledge in seeking clarification, it was the fact that the the LPA's employee badly advised someone seeking an opinion about planning matters, that frustated me after reading your posting.
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