Highway for the purpose of Permitted development Right

Re: Highway for the purpose of Permitted development Right

Postby pilman » Wed Sep 16, 2015 5:18 pm

A vist to the council offices to look at the file for the planning application should be arranged, because it seems that nowadays an appointment is necessary to allow old files to be retrieved, although some files would still be kept on microfiche with an optical reader located somewhere in the council offices.

A Section 106 agreement is not the same as a Section 38 agreement which the one used for the construction and adoption of a public highway in a new development.

It really does need some research to see what was required in the Section 106 agreement, although the letter or e-mail from the council was quite definite as to the legal status of the road set out by the developer.
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Re: Highway for the purpose of Permitted development Right

Postby jonahinoz » Mon Oct 05, 2015 9:32 am

Hi,

If this is a public road, please can I bring Blitz along for a short walkie? I assume an appointment will not be needed to get through the gate?

602
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Re: Highway for the purpose of Permitted development Right

Postby the_one_loft » Tue Oct 13, 2015 8:56 am

jonahinoz wrote:Hi,

If this is a public road, please can I bring Blitz along for a short walkie? I assume an appointment will not be needed to get through the gate?

602


You are more than welcome!
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Re: Highway for the purpose of Permitted development Right

Postby the_one_loft » Mon Jul 11, 2016 10:56 am

By way of an update on the situation - Council has now sent me pre-enforcement letter.
Highway authority on the other hand has also provided a confimation that the street does not have public right of way after payment of £75.

To make the matters complicated, the GPDO 2015 and the technical guidance issued in April 2016 now clarify that the Highway definition will include Private ways.

Hope this information helps others who are tangled into the Technical definition of the "Highway".

Many thanks to many GardenLaw members who have helped me throughout.
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Re: Highway for the purpose of Permitted development Right

Postby MacadamB53 » Mon Jul 11, 2016 3:06 pm

Hi the_one_loft,

the technical guidance issued in April 2016 now clarify that the Highway definition will include Private ways.

could you post a link to this please?

Kind regards, Mac
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Re: Highway for the purpose of Permitted development Right

Postby the_one_loft » Mon Jul 11, 2016 3:52 pm

https://www.gov.uk/government/uploads/s ... idance.pdf

Page 6 -
“Highway” – is a public right of way such as a public road, public footpath and bridleway. For the purposes of the Order it also includes unadopted streets or private ways.

Compare this with 2014 version -
http://webarchive.nationalarchives.gov. ... idance.pdf

A highway will usually include public roads (whether adopted or not) as well as public footpaths and bridleways, but would not include private driveways.
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Re: Highway for the purpose of Permitted development Right

Postby pilman » Mon Jul 11, 2016 9:24 pm

The Statutory Instrument 2015 596 was passed by Parliament.
It's title was "The Town and Country Planning (General Permitted Development (England) Order 2015"

The words following that heading confirms the following facts;

Made 18th March 2015
Laid before Parliament 24th March 2015
Coming into force 15th April 2015

In the Interpretation section of that Statutory Instrument is the definition of "Highway"

"The Permitted development rights for householders - Technical Guidance"

This document was issued in 2016 by the Department for Communities and Local Government after it was drafted by civil servants within that Department.

Until tested in court, or before a Planning Inspector on appeal, it would appear to have no legal basis for the new interpretation of Highway being referred to.

Personally I would wait to see if any enforcement action is started now that written confirmation was received that this private road is not a highway as defined in the Highways Act 1980.

Section 31 Dedication of way as highway presumed after public use for 20 years.

(1)Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.

[F1(1A)Subsection (1)—

(a)is subject to section 66 of the Natural Environment and Rural Communities Act 2006 (dedication by virtue of use for mechanically propelled vehicles no longer possible), but

(b)applies in relation to the dedication of a restricted byway by virtue of use for non-mechanically propelled vehicles as it applies in relation to the dedication of any other description of highway which does not include a public right of way for mechanically propelled vehicles.]

(2)The period of 20 years referred to in subsection (1) above is to be calculated retrospectively from the date when the right of the public to use the way is brought into question, whether by a notice such as is mentioned in subsection (3) below or otherwise.

(3)Where the owner of the land over which any such way as aforesaid passes—

(a)has erected in such manner as to be visible to persons using the way a notice inconsistent with the dedication of the way as a highway, and

(b)has maintained the notice after the 1st January 1934, or any later date on which it was erected,

the notice, in the absence of proof of a contrary intention, is sufficient evidence to negative the intention to dedicate the way as a highway.


(4)In the case of land in the possession of a tenant for a term of years, or from year to year, any person for the time being entitled in reversion to the land shall, notwithstanding the existence of the tenancy, have the right to place and maintain such a notice as is mentioned in subsection (3) above, so, however, that no injury is done thereby to the business or occupation of the tenant.

(5)Where a notice erected as mentioned in subsection (3) above is subsequently torn down or defaced, a notice given by the owner of the land to the appropriate council that the way is not dedicated as a highway is, in the absence of proof of a contrary intention, sufficient evidence to negative the intention of the owner of the land to dedicate the way as a highway.

(6)An owner of land may at any time deposit with the appropriate council—

(a)a map of the land on a scale of not less than 6 inches to 1 mile, and

(b)a statement indicating what ways (if any) over the land he admits to have been dedicated as highways;

and, in any case in which such a deposit has been made, statutory declarations made by that owner or by his successors in title and lodged by him or them with the appropriate council at any time—

(i)within [F2ten] years from the date of the deposit, or

(ii)within [F2ten] years from the date on which any previous declaration was last lodged under this section.

to the effect that no additional way (other than any specifically indicated in the declaration) over the land delineated on the said map has been dedicated as a highway since the date of the deposit, or since the date of the lodgment of such previous declaration, as the case may be, are, in the absence of proof of a contrary intention, sufficient evidence to negative the intention of the owner or his successors in title to dedicate any such additional way as a highway.

(7)For the purposes of the foregoing provisions of this section “owner”, in relation to any land, means a person who is for the time being entitled to dispose of the fee simple in the land; and for the purposes of subsections (5) and (6) above “the appropriate council” means the council of the county [F3, metropolitan district] or London borough in which the way (in the case of subsection (5)) or the land (in the case of subsection (6)) is situated or, where the way or land is situated in the City, the Common Council.

[F4(7A)Subsection (7B) applies where the matter bringing the right of the public to use a way into question is an application under section 53(5) of the Wildlife and Countryside Act 1981 for an order making modifications so as to show the right on the definitive map and statement.

(7B)The date mentioned in subsection (2) is to be treated as being the date on which the application is made in accordance with paragraph 1 of Schedule 14 to the 1981 Act.]

(8)Nothing in this section affects any incapacity of a corporation or other body or person in possession of land for public or statutory purposes to dedicate a way over that land as a highway if the existence of a highway would be incompatible with those purposes.

(9)Nothing in this section operates to prevent the dedication of a way as a highway being presumed on proof of user for any less period than 20 years, or being presumed or proved in any circumstances in which it might have been presumed or proved immediately before the commencement of this Act.

(10)Nothing in this section or section 32 below affects [F5section 56(1) of the Wildlife and Countryside Act 1981 (which provides that a definitive map and statement] are conclusive evidence as to the existence of the highways shown on the map and as to certain particulars contained in the statement),. . . F6

[F7(10A)Nothing in subsection (1A) affects the obligations of the highway authority, or of any other person, as respects the maintenance of a way.]

(11)For the purposes of this section “land” includes land covered with water.

[F8(12)For the purposes of subsection (1A) “mechanically propelled vehicle” does not include a vehicle falling within section 189(1)(c) of the Road Traffic Act 1988 (electrically assisted pedal cycle).]

Section 32 Evidence of dedication of way as highway.

A court or other tribunal, before determining whether a way has or has not been dedicated as a highway, or the date on which such dedication, if any, took place, shall take into consideration any map, plan or history of the locality or other relevant document which is tendered in evidence, and shall give such weight thereto as the court or tribunal considers justified by the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled, and the custody in which it has been kept and from which it is produced.
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Re: Highway for the purpose of Permitted development Right

Postby the_one_loft » Wed Jul 13, 2016 10:13 am

Thanks Pilman,

The following may not be relevant for my project since I had initiated work before GPDO 2015 came in force but just for academic discussion-
GPDO 2015 states -

Interpretation of Part 1
I. For the purposes of Part 1—
“highway” includes an unadopted street or a private way;

And Private way is defined as -
“private way” means a highway not maintainable at the public expense and any other way
other than a highway;

Combining the two of these definitions, the statute seems to have changed significantly effective bringing all kinds of ways into the Highways definition for the purpose of part 1 of GPDO.
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Re: Highway for the purpose of Permitted development Right

Postby the_one_loft » Mon Jul 18, 2016 9:14 am

Any thoughts on above? Is my interpretation correct?
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Re: Highway for the purpose of Permitted development Right

Postby pilman » Mon Jul 18, 2016 11:30 am

Is my interpretation correct?
Probably!
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Re: Highway for the purpose of Permitted development Right

Postby the_one_loft » Tue Jul 19, 2016 4:21 pm

pilman wrote:
Is my interpretation correct?
Probably!


Thanks!
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Re: Highway for the purpose of Permitted development Right

Postby jonahinoz » Wed Aug 03, 2016 10:15 pm

Don't worry, I didn't take offence, that was me being a bit silly before going to bed on a Friday evening.

Hi,

Yeah, that's what he told me too. :-)

The LA should be able to produce the necessary documents, else how will they enforce them. ( Unless they are in South Wales, where Local Government re-organisation in 1996 (?) meant that all planning applications before that time are not accessible, though I understand they still exist, but not in any order, in 50 large boxes).

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Re: Highway for the purpose of Permitted development Right

Postby ukmicky » Sat Aug 06, 2016 8:49 pm

the_one_loft wrote:Thanks Pilman,

The following may not be relevant for my project since I had initiated work before GPDO 2015 came in force but just for academic discussion-
GPDO 2015 states -

Interpretation of Part 1
I. For the purposes of Part 1—
“highway” includes an unadopted street or a private way;

And Private way is defined as -
“private way” means a highway not maintainable at the public expense and any other way
other than a highway;

Combining the two of these definitions, the statute seems to have changed significantly effective bringing all kinds of ways into the Highways definition for the purpose of part 1 of GPDO.



For it to be a highway under planning purposes the public will have a right to access . If to access this land you need a fob it is not a highway as defined for planning purposes.

The term Facing a highway also has its limitations. If there is any land in-between that has a different use or the distance is substantial then it cant be said to be fronting an highway.
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Highway for the purpose of Permitted development Right

Postby the_one_loft » Thu Aug 18, 2016 12:14 pm

ukmicky wrote:
the_one_loft wrote:

For it to be a highway under planning purposes the public will have a right to access . If to access this land you need a fob it is not a highway as defined for planning purposes.



Sorry, the new definition for GPDO states that "any other way" is a private way and private way is a highway.
Effectively - that means any way - whether it has public right of way or not - is a Highway for GPDO.

As long as it is a "Way" - it is a highway.

UKMICKY - do you disagree?
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Re: Highway for the purpose of Permitted development Right

Postby MacadamB53 » Thu Aug 18, 2016 3:59 pm

Hi the_one_loft,
“private way” means a highway not maintainable at the public expense and any other way other than a highway;
not quite...

...you've misquoted the guidance, which reads as follows:

“Unadopted street” – means a street not being a highway maintainable at the public expense within the meaning of the Highways Act 1980.

the guidance has nothing to say on what is or is not a "private way"

Kind regards, Mac
ps this just concerns Part 1 of the GPDO, not the GPDO in its entirety as your last posting implies...
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