Private road or adopted highway?

Private road or adopted highway?

10:22 AM, 28th June 2017, About 7 years ago 4

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I own a property that was purchased by my parents in 1992 and I need to establish if it is still on a private road or adopted highway?

The property was one of only five properties on a private lane that leads to a farm at the end. The property sits at the beginning of the lane with one side bordering the highway and the frontage bordering a private (unregistered) lane made up of borders and hardstanding. The hardstanding area directly outside our property was considerable in size allowing for ample street parking without affecting vehicles using the lane including HGVs. My father parked his motorhome outside for many years. He also maintained the lane outside the property tending to the borders and filling in pot holes etc. as required with a private road.

I have a signed ‘Statutory Declaration’ and plan which was drawn up by a solicitor in 1992 stating as there was no express right of way referred to in the title deeds for the property but the property had a right of way over this area with or without vehicles.

The farm at the end of the lane was sold in 1998 and the new owner sought planning permission in 2006 to develop part of the farm into six executive homes and retained a considerable portion of land with access via the lane, probably to develop later.

In 2007 the buyer’s solicitor contacted my father seeking a ‘transfer of his interest in the road and consent to relocation of the right of way serving his property’ for adoption by the council. My father was in discussions with a surveyor and the developer’s solicitor until communicated dried up. Surprisingly in approximately 2011 a new road was built although never finished. Access changed significantly for us resulting poor restricted access with a new narrow curved drive being installed from the lane right up to the garden gates with the hardstanding either side replaced with meadow grass/weeds. Drop kerbs have not been placed wide enough apart resulting vehicles having to drop off the kerb causing damage (broken spring and damaged sills). Street parking previously allowed for a minimum of six vehicles to be parked directly outside the property at any one time without causing any issues with other road users including HGV’s. Parking is now limited to the newly installed long thin drive which causes problems when one of our four cars need to get out of the drive the other three cars have to move to let them out and there is nowhere to move them to , except the grass. It is really difficult maneuvering our 26ft caravan up the long drive whilst negotiating a curve at the same time coupled with restricted room in the lane. None of the other resident’s access has been affected in the same way ours has.

My father expressed his total dissatisfaction with the new road and drive and requested his access be rectified which he set out in a letter to the developer from his solicitors in 2011, along with other key points such as development limited to 6 dwellings, retention of title and payment of costs. Sadly in 2014 my father passed away without receiving a response. To date no response has been received and the road is still in the same unfinished state with the development of the properties only just beginning in July 2016, none of which have been finished. We have heard a rumour that the developer has sold the plots on for someone else to develop.

Since the road was built the grassed area either side of the drive has never been cut or tended by the property developer or the council. The local area lacks green space so since it has been grassed it has become the local dog toilet where people come and literally stand with their dogs until they have defecated. Some pick up, but most don’t, but even so it encourages other dogs to do the same. We have even had travellers camping on the grass, HGV’s often run over the grass at the end of the lane leaving deep ruts and our drive has become a turning point used by visitors, taxis, delivery vans etc . The property is in a wind tunnel so every piece of rubbish especially insulation from the development ends up in this space which needs to be cleared daily in addition we have had fly tipping on several occasions and on one occasion a whole load of leylandii was dumped. Unfortunately as it was on a private road we had to arrange for its removal. Cleaning rubbish from this area has never been done by either the developer or council.

As we had not heard from the developer or their solicitor in the belief it was still a private road two years ago we planted row of Beech saplings along one side of the property adjacent to the highway to make the area look nice and to stop it being used as a dog toilet, dumping ground, parking spot,camping spot etc. The grass was reseeded and treated for weeds and has been mown weekly since keeping the area looking smart and tidy. Early this this year we also planted another row of saplings at the other side and installed a pair of farm gates adjacent leading on to the lane.

Last week I received a letter from the council entitled Highways ACT 1980 stating they want a site meeting as they have received a complaint about the planting of trees stating the land forms part of the Council’s adopted highway. I was expecting a letter from the developer’s solicitor but not from the council saying it was already adopted, I am shocked and wonder how can this be when we were in a legal dispute about it?

Before I respond I would be most grateful for any help/advice and for clarity on the following points:

• Could the road have been adopted by the council without our permission?
• Did all neighbours need to agree to the proposed change before it could be implemented?
• The road is not at a proper standard, should the council have taken it over in this state?
• Should the council have adopted a road when the development isn’t finished when council finances are in the current state they are and for only 7 properties?
• I understand the developer has sold the plots on, should the legal dispute have transferred also?
• As a family we have used this land to park on and drive over for 25 years, do we have any rights?
• Do the council have power to make me remove the saplings and gates when it is part of a legal dispute?
• Should I respond to the letter by writing back stating the road should not have been adopted as there is a legal dispute ongoing, or, should I meet with the council official?
• Can I request correspondence under the Freedom of Information Act to establish who has complained and get all the information on the development of the road at the same time?
• How do I find out if it has become a Section 38?
• I have tried contact my dad’s solicitor on a couple of occasions but he always seems too busy and says he now works in a different department dealing with bigger issues, should I stick with him as he knows the history or appoint another solicitor to deal?

Thanks in advance for your time.



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Duncan Horncastle

12:32 PM, 28th June 2017, About 7 years ago

If you contact the local council they will have a plan showing the limits of the adopted highway. If the road is adopted they are responsible for its maintenance, if it has been constructed by the developer under a S38 and not finished the council will have a bond to complete it. If it is not to your satisfaction why can't you go back to the old access?

Graham Bowcock

12:59 PM, 28th June 2017, About 7 years ago

Dear Helen

This seems quite complicated and I suspect you need some legal advice. If you original solicitor will not engage with you then find someone who will.

It may actually be simpler in some respects, as you have raised a number of issues. The key point is your ability to access your own property on the basis that was originally intended (this may be unrestricted or may be limited, for example, to a domestic use only). What other people do with the access is, arguably, nothing to do with you, as long as your own rights are not impeded. If you don't own the track then you cannot impose on others.

If the developer is selling off houses then it is likely that there is a formal agreement for use of the access (which may include adoption). No lender would grant a mortgage unless access was guaranteed. This may or not help you (and may not be relevant to you case) but I thought you would be interested.



8:48 AM, 3rd July 2017, About 7 years ago

Reply to the comment left by "Graham Bowcock" at "28/06/2017 - 12:59":

It is interesting to know about the mortgage situation. Many thanks


8:51 AM, 3rd July 2017, About 7 years ago

Reply to the comment left by "Duncan Horncastle" at "28/06/2017 - 12:32":

Thanks for your advice. I have contacted the council and was told the road is still private and does not have a section 38 in place. Regards

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