Registered common land and highways

The Open Spaces Society has been defending open spaces in England and Wales since 1865.

This fact sheet covers the following information about registered common land and highways.
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This fact sheet is brought to you by the Open Spaces Society - We campaign for stronger protection for common land, village greens, open spaces, and public paths in England and Wales, and for greater opportunities for everyone to enjoy them. As a small charity, memberships are vital to our ability to continue to support more than 600 cases annually helping individuals, groups and communities to save their local green spaces and paths. Individual membership costs £3/month. Join us today.

Summary

1.1 Registered common land may also be part of a public highway, and evidence that land is registered common land or part of a highway is of little or no value in demonstrating that the land is not the other. Similar principles apply to registered town or village greens, although the statutory background is different.
 
1.2 In the Society’s view, the registration of highway land as common land cannot be assailed or set aside on the grounds on wrongful registration. The functions of a highway authority in relation to highway land registered as common land are subject to the controls on works contained in Part 3 of the Commons Act 2006: these controls will seldom interfere with maintenance, but may require the consent of the Secretary of State in relation to improvements or fencing.
 
1.3 Whereas, where any highway land is included in the registration of a town or village green, the registration is not in breach of any express requirement in legislation, but the registration may theoretically constrain the maintenance of the highway, particularly if it is a tarred road used by motor traffic.

Background

Common land and highway
2.1 Nearly all registered common land was registered on an application under the Commons Registration Act 1965 (‘the 1965 Act’), or on the initiative of the commons registration authority 1 under the 1965 Act. An applicant for registration 2 of common land, or of a right of common over common land, was required to complete a form 3 , and submit it with a plan of the common 4 . The 1965 Act provided that common land meant “land subject to rights of common…[or] waste land of a manor not subject to rights of common” 5 .

2.2 Where common land comprised in an application included public roads or other highways unfenced from the common, an applicant had no reason to exclude such high-ways from the common land identified in the plan. The notes to the form contained no guidance on whether highways should be excluded from the plan. Applicants who wished to register a right of common grazing over common land knew that grazing animals were at liberty to wander over the entire common, including any highway across the common. If they had been challenged on a question of precedence, they, and their challenger, would have been hard pressed to identify which came first: the acquisition of a right of common, or the dedication of the highway; in most cases, both events would have occurred well beyond living memory.

2.3 But the 1965 Act also provides that, for the purposes of registration, “‘common land’…does not include…any land which forms part of a highway” 6 . ‘Highway’ is not defined in the 1965 Act, but the term invariably means any way over which there is a public right to pass on foot, with or without a right of way for cycles, horses or vehicles. It follows that no land comprised in a highway qualified for registration under the 1965 Act.

2.4 The exclusion of highway land from registration under the 1965 Act was inserted at the behest of the then Ministry of Transport, which foresaw undesirable conflicts arising where land was both registered common land and highway 7 . The exclusion did not reflect the reality of commoning on unenclosed land, which does not allow for a distinction be-tween the two; nor the origins of commoning, which very often cannot assign precedence to one nor the other.

2.5 Still less did the provision take account of the many unsurfaced highways (such as public footpaths and bridleways) across common land, which may have been unidentifiable on the ground, but were still technically required to be excluded from registration. Or the many highway verges, often of uncertain highway status, which were sometimes included in applications to register common land because they were also considered to be waste land of a manor.

2.6 Many commons registration authorities received large numbers of applications for registration of common land which included highways, and responded in at least one of several ways:
• the authority registered the whole of the land identified in the application plan as common land, including any highway land;
• the authority excluded any public roads from the land registered as common land;
• the authority excluded all highways (including public rights of way) from the land registered as common land.

2.7 It follows that practice varies between commons registration authorities. In some authorities, the highways department of the authority assiduously objected to any registration of public roads (but rarely, it seems, to registration of public rights of way), and such objections were given effect by the commons registration department. In some cases, perhaps where there was uncertainty about the status of land as highway verge, the highway department maintained an objection before the Commons Commissioners, who made a final decision.

2.8 Accordingly, the registers of common land reflect these different practices. For example, the registers for Dartmoor in Devon include public roads across the moor; the registers in Surrey invariably exclude public roads. The register extract for Studham in Bedfordshire reproduced below illustrates the practice of one commons registration authority to exclude all highways across the common (and possibly tracks which were not public highways).

Figure 1: Bedfordshire register unit CL18 Studham: excludes all public highways across the common, including public footpaths
Figure 1: Bedfordshire register unit CL18 Studham: excludes all public highways across the common, including public footpaths

Town and village greens and highway
2.9 Town and village greens were registered under the 1965 Act in exactly the same ways as common land.8

2.10 The 1965 Act makes no provision for the exclusion of highway land from any land registered as a town or village green. It follows, therefore, that many registered town or village greens do include, within the register units, highways which intersect the green.

2.11 In much the same way that the origin of land as both common land and highway may lie beyond living memory, so it may be that land may be both green and highway. While today, it may seem unlikely that local inhabitants will choose to play lawful sports and pastimes on roads across a green, in the past, when traffic was slight and its pace was slower, there was no reason why such activities should have yielded to highway use, and many minor highways across a green (such as footpaths and unsurfaced roads) may have been barely distinguishable.

2.12 Leaving aside the origin of highway and recreational rights on the same land, there is no practical or legal reason why land should not be both a highway and registered as a town or village green: a highway may be dedicated to the public, subject to the exercise of market rights9 , and there seems to be no reason why a highway might not also be subject to customary recreational rights.

2.13 Different considerations arise in relation to the question of whether land which is comprised in a highway can now be registered under the 2006 Act10 as a town or village green. It may be difficult to show that lawful sports and pastimes undertaken on land comprised in a highway go beyond the statutory rights of user of the highway.11 Where an application to register land includes land where the character of use could be attributable to the dedication of that land as a highway, it seems that such use must be discounted (and may instead be sufficient to support an application to record a public right of way).12

(1)i.e. the local authority tasked with preparing and maintaining the registers: at the time, county councils and the Greater London Council.

(2)Strictly, the 1965 Act enabled the ‘provisional’ registration of land: a provisional registration became final in the absence of any objection, or on its confirmation by a Commons Commissioner.

(3)Forms 7 (application for the registration of land as common land) and 9 (application for the registration of a right of common), prescribed in Schedule 1 to the Commons Registration (General) Regulations 1966, SI 1966/1471, as amend-ed by paragraphs 6 and 8 of the Schedule to the Commons Registration (General) (Amendment) Regulations 1968, SI 1968/658.

(4)No plan was required if the application related to an area of common land already registered in one or more register units: see note 4 to form 7 and note 4(a) to form 9.

(5)Section 22(1) of the 1965 Act. For further explanation of the process under the 1965 Act, see the archived Defra guidance on the 1965 Act, How the commons registers were prepared (June 2010, not updated).

(6)See the proviso to the definition of common land in section 22(1) of the 1965 Act.

(7)Commons Registration Bill, notes on clauses, clause 20(2) (as at introduction).

(8)Application to register a green was made in form 8 (application for the registration of land as a town or village green), prescribed in Schedule 1 to the Commons Registration (General) Regulations 1966, SI 1966/1471, as amended by paragraph 7 of the Schedule to the Commons Registration (General) (Amendment) Regulations 1968, SI 1968/658. Application for registration of a right of common over a town or village green was made in form 9: it appears that if an application in relation to land was first made in form 9, the land would, by default, be registered as common land.

(9)Attorney-General v Horner (1885) 11 App Cas 66, Goldsmid v Great Eastern Railway Co. (1883) 25 Ch D 511

(10)Sections 15–15C.

(11)Director of Public Prosecutions v. Jones and Another [1999] UKHL 5. In Somerford Parish Council v Cheshire East Borough Council & Anor [2016] EWHC 619 (Admin), the case proceeded on the assumption that if the application land were found to be highway, the application would fail.

(12)Oxfordshire County Council v Oxford City Council & Anor [2004] EWHC 12 (Ch), paragraphs 96–105, endorsed by Lord Hoffmann on appeal (Oxfordshire County Council v. Oxford City Council & Ors UKHL 25) paragraphs 65–68.

The position today

Common land
3.1 Today, the register unit for a particular common may or may not include roads and public paths across the common within the register unit.

3.2 Section 10 of the 1965 Act provides that: “The registration under this Act of any land as common land…, shall be conclusive evidence of the matters registered, as at the date of registration… .” In the Society’s view, the registration of land as common land is therefore conclusive of that status, even if any part of the land is comprised in a public highway.

3.3 It may be suggested that, because the 1965 Act required highway land to be exclud-ed from registration, the registration of any highway land must be a nullity. However, the courts have ruled that the registration of land is final, and cannot be undone except in accordance with statute.13

3.4 Section 21(2) of the 1965 Act provides that “Section 10 of this Act shall not apply for the purpose of deciding whether any land forms part of a highway.” This provision ensures that the registration of land as common land cannot be used as evidence that the land is not also highway land (thus stifling any argument that, given the requirement to exclude high-way land from registration, any registered land cannot be both common land and highway land). But it also signals that Parliament, in enacting the 1965 Act, anticipated that some highway land would become registered as common land, and wished to provide for such an outcome. The 1965 Act does not however go further (but could have done), and provide that land registered as common land which can be proved to be highway land is not to be treated as conclusive of registration as common land.

3.5 Where Part 1 of the Commons Act 2006 (‘the 2006 Act’) has been brought fully into force14 , the 1965 Act is repealed. However, section 3(6) of the 2006 Act states that: “Except as provided under this Part or any other enactment— (a) no land registered as common land…is to be removed from the register in which it is so registered”. The 2006 Act confers the same assurance as to the status of registered common land as the courts have found in relation to the 1965 Act: once registered, land cannot be removed from the register in consequence of some purported error in registration, but only in accordance with a provision in the 2006 Act itself, or some other statutory provision.

3.6 Paragraphs 6 and 7 of Schedule 2 to the 2006 Act enable an application for the deregistration of registered common land, or a proposal by the commons registration authority to the same effect, in certain circumstances. However, in the Society’s view, no case can be made under either paragraph to secure the deregistration of highway land.

Town or village greens

3.7 Some registered town or village greens do include highways across the green, although it is more usual that significant highways are excluded.
3.8 There can be no question about the registration of highway land as town or village green: the 1965 Act does not exclude such registration. And the same protection is afforded to the registration of greens as to common land: see paragraph 3.5 above.
3.9 Paragraphs 8 and 9 of Schedule 2 to the 2006 Act enable an application for the deregistration of registered town or village green, or a proposal by the commons registration authority to the same effect, in certain circumstances. However, in the Society’s view, no case can be made under either paragraph to secure the deregistration of town or village green.

Town or village greens
3.7 Some registered town or village greens do include highways across the green, although it is more usual that significant highways are excluded.

3.8 There can be no question about the registration of highway land as town or village green: the 1965 Act does not exclude such registration. And the same protection is afforded to the registration of greens as to common land: see paragraph 3.5 above.

3.9 Paragraphs 8 and 9 of Schedule 2 to the 2006 Act enable an application for the deregistration of registered town or village green, or a proposal by the commons registration authority to the same effect, in certain circumstances. However, in the Society’s view, no case can be made under either paragraph to secure the deregistration of town or village green.

(13)Corpus Christi College, Oxford v Gloucestershire County Council [1982] 3 All ER 995: per Kerr LJ, “The clear prima facie effect of s 10…must be that it is not now open to anyone to dispute the fact that Temple Ham meadow is common land….”

(14)Currently, in only nine pioneer commons registration authority areas: Blackburn with Darwen Borough Council, Cornwall Council, Cumbria County Council, Devon County Council, County of Herefordshire District Council, Hertfordshire County Council, Kent County Council, Lancashire County Council, North Yorkshire County Council.

Outcome

Registered common land
4.1 In the Society’s view, the registration of some highway land as common land should seldom give rise to problems. As we have seen in the Background above, the existence of a highway is not incompatible with the exercise of common rights over it: many (if not most) commons are traversed by unfenced roads and public paths, and it will frequently be unclear what are the precise boundaries of the road and the common. This is already recognised in law: for example, the Highways Act 1980 provides for penalties in connection with straying animals on a highway, but excludes the operation of the section from any common.15

4.2 Highway authorities may have concerns about the exercise of their functions in relation to highways (and particularly metalled roads) on registered common land. This is because Part 3 of the 2006 Act requires the consent of the Secretary of State to ‘restricted works’ on registered common land. Restricted works are “works which have the effect of preventing or impeding access to or over the land”, or works “for the resurfacing of land if they consist of the laying of concrete, tarmacadam, coated roadstone or similar material on the land (but not if they consist only of the repair of an existing surface of the land made of such material)”.16 Accordingly, general works of maintenance, such as resurfacing the carriageway, will not require consent.

4.3 Some works of improvement, such as widening the carriageway, may require con-sent. In the Society’s view, the requirement for consent for improvements to highways across commons strikes a fair balance.

4.4 Exceptionally, works of improvement which “are carried out under a power conferred by or under any enactment applying to common land” do not require consent.17 The only known such power available to all highway authorities is one which authorises the installation of cattle grids, cattle grid bypasses and associated fencing works on an area of common land adjoining a road.18

4.5 Fencing of highways on common land will normally require consent (unless they fall within the exception mentioned in paragraph 4.4 above). Even where a highway is excluded from registration as common land, the presumption on open commons must be that only the metalled carriageway is excluded. Typically, the land on either side of the carriageway will be indistinguishable from the rest of the common, and the Society’s view is that, in a typical exclusion from registration, there is unlikely to be any basis on which one might conclude that the exclusion extends further than the metalled carriageway. So, unless the register map clearly excludes a larger area, consent will still be required for fencing.

Registered town or village green
4.6 There is no question over the registration of highway land as town or village green. Where minor unsealed roads or other public rights of way are included in the registration, this is unlikely to give rise to serious problems, as registration does not constrain the use of the highway as such.

4.7 However, the registration of roads across a green may give rise to greater problems than in relation to registered common land. A green is subject to protection under the In-closure Act 185719and the Commons Act 1876.20 Under the 1857 Act, it is (inter alia) a criminal offence to undertake any act which interrupts the use or enjoyment of a green as a place of exercise and recreation, and under the 1876 Act, it is a public nuisance to erect any structure other than for the purpose of the better enjoyment of the green, or to disturb, occupy or interfere with the soil of the green (e.g. camping) other than for the purpose of the better enjoyment of that green.

4.8 The usual management of a road across a town or village green (where the road is comprised in the registration) may give rise to a theoretical conflict with these provisions, although the Society knows of no case arising from them in such circumstances. However, highway authorities should be very cautious of undertaking any works which would widen the highway across a registered town or village green or otherwise encroach further on the green, as this may give rise to criminal liability.

(15)Section 155(1)
(16)Section 38(2)–(4) of the 2006 Act.
(17)Section 38(6)(b) of the 2006 Act
(18)Section 82(4) of the Highways Act 1980
(19)Section 12
(20)Section 29

Further reading

Our Common Land: the law and history of commons and village greens by Paul Clayden (Open Spaces Society, 2007 (6th edition) £20 to non-members, £19 to members, including postage and packing).

Gadsden on Commons and Greens by Edward F Cousins and Richard Honey, 2nd edition (Sweet & Maxwell, 2012) ISBN 9780421851009

Halsbury’s statutes will also be found in principal reference libraries.

A Common Purpose: a guide to community engagement, revised 2012

Finding Common Ground by Kate Ashbrook and Nicola Hodgson
(Open Spaces Society, 2010)

While the Open Spaces Society has made every effort to ensure the information obtained in this factsheet is an accurate summary of the subject as at the date of publication, it is unable to accept liability for any misinterpretation of the law or any other error or omission in the advice in this paper.

© Open Spaces Society, July 2017
v.1.1

Further resources about Registered common land and highways

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  • Vehicular access across Common Land and Town or Village Greens

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  • Works on common land in Wales

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  • A Common Purpose Guide

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  • An approach to the re-registration of commons

    Our commons re-registration officer Dr Frances Kerner shares our approach to research and application preparation

  • A commons conference campanion

    The Countryside and Community Research Institute of Gloucester University (CCRI) has published a Commons e-book

  • DIY guide to registering lost commons

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  • Buildings, fences and other works on common land in England

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Registered common land and highways

The Open Spaces Society has been defending open spaces in England and Wales since 1865.

This fact sheet is brought to you by the Open Spaces Society - We campaign for stronger protection for common land, village greens, open spaces, and public paths in England and Wales, and for greater opportunities for everyone to enjoy them. As a small charity, memberships are vital to our ability to continue to support more than 600 cases annually helping individuals, groups and communities to save their local green spaces and paths. Individual membership costs £3/month. Join us today.

1. The long-standing problem of encroachments

1.1 Open land beside our roads has always been vulnerable to encroachment and the society was involved from its start in 1865. Take two encroachment cases, from north and south.
1.2 A Yorkshire writer in 1889 lamented the ‘poor, cramped appearance, narrow and confined irregularities’ of the road from Easingwold to Northallerton, due to ‘adjacent property owners having annexed the rich green borders with which it was once margined’. That probably occurred before the society’s formation.
1.3 In Hertfordshire in 1867 the young society showed its teeth in a delicious battle of landowning Titans. Lord Salisbury fenced in a strip of roadside waste; Lord Cowper (whose access was obstructed) acting on the society’s advice ‘collected a large body of tenants and labourers who under his personal superintendence removed the whole of the fences in one night’.
1.4 The young George Shaw-Lefevre, the society’s founder and later its president and chairman, was obviously behind this; he had already dealt with a roadside encroachment near his home at Ascot and the thing rankled until much later when, as an MP and minister, he saw to it that the protection of roadside wastes became an express task of the new county councils in 1888 and the new district and parish councils in 1894.
1.5 Before the war the society published a pamphlet, Roadside Wastes, by the late W R Hornby Steer, MA LLB, its standing counsel. This appeared first as an article in the society’s Journal in July 1936, was revised in 1946 and again in 1994, and subsequently published as an information sheet, Highway Verges l. It drew on long experience and quoted at length from leading judgments in the courts. The availability now of detailed legal commentary in the society’s book Rights of Way(1)—a guide to law and practice enables this briefing to take a different approach. It complements the book throughout but a few specific references have been given.

(1) John Riddall and John Trevelyan, 4th edition, 2007

 

2. A road is wider than its maintained carriageway

2.1 Where a road runs between enclosed properties there is usually on each side of the hard carriageway a strip of land which, physically at least, is open to the public. The strip may be occupied by a pavement, or carriageway widening may have reduced it to a mere vestige.
2.2 But in typical landscape we can enjoy two grass verges. They may be uni-form in width for long stretches, or the back boundary can be irregular and full of variety. The eye of an archaeologist or the patience of a local historian may be needed to say why any particular strip of verge has its own special width and shape, and when its back boundary came to be what it is—a bank, a hedge, a field wall or the wall of a building.
2.3 Where the road runs through land that is not enclosed, there may be nothing to show how much of the adjoining land belongs to the road. Quite probably none of it does unless proved otherwise (see paragraphs #34 and #35 below).

3. A road has to accommodate all its lawful users

3.1 What we now call a road is usually a route intended for multiple uses: for walking, riding or driving stock, and for wheeled traffic. Only ‘special roads’, especially motorways, or roads subject to a traffic regulation order, are restricted.
3.2 That was not always so. Many highways that were called roads were not used, intended or even practicable for wheeled traffic. The very names ‘drove road’ and ‘packhorse road’ illustrate this. There was not much wheeled traffic until at most 250 years ago and then only on particular roads. A bridleway could be called a road. It is an anachronism to suppose that a ‘road’ shown on an eighteenth-century map was necessarily a carriageway.
3.3 Before public roads were properly made and maintained, the users needed freedom to deviate and to find the best route over an adequately wide strip of open land. This was so whether one travelled on foot or horseback, with a horse-drawn vehicle, or droving cattle or sheep.
3.4 Where local conditions rendered the road swampy or liable to erode, the strip would be wider than where the ground was hard and well drained. Only if the ad-joining land was being inclosed or became cultivated was it necessary to define what open width travellers needed; then the landholder must either leave enough for any necessary deviation, or must accept liability for maintaining a roadway such as to be serviceable without deviation. Normally the landowner chose the former so that the parish would remain liable for maintenance.
3.5 Proper maintenance removes the need to deviate. But today, with maintained carriageways used to their limit by vehicles, a verge is essential on many roads for enabling pedestrians and horse-riders to use them safely. Where carriageway widening has left insufficient level verge, vehicles will soon oust from the highway all pedestrians and horse-riders who care for their safety. Highway authorities and the public purse have been party to this appropriation of roads by vehicles. The loss of verges for ridden horses results surely from an unreasonably narrow interpretation by highway authorities of their statutory duty (see paragraph 43 be-low).

4. The full width of a public road is a highway

4.1 When open land lies alongside a public road, and the public uses it for passage, the presumption will arise that the land has been dedicated as part of the highway (Rights of Way, pages 42–59). The rule is: once a highway, always a high-way, even if the needs and habits of the public have changed and the land is now little used. So this open land is just as integral to the highway as the metalled carriageway is.
4.2 Only with the specific authority of statute are obstructions lawful, such as traffic signs and bus shelters and new trees and certain apparatus of statutory undertakers. Even for road-stone knapping dumps — once commonplace along publicly-maintained roads — the old highway authorities would often acquire plots extending back from the road, rather than use the verge.

5. Planting and mowing the verge (2)

5.1 Highway authorities lawfully may put trees, shrubs and plants within the highway limits, and lay out the verge, and protect these with guard rails and even fences. A district or parish council can do the same with the highway authority’s consent. However the public has some safeguard: none of this may be done ‘in such a situation as to hinder the reasonable use of highway by any person entitled to use it’.
5.2 A frontager too can be licensed by the highway authority to plant and maintain trees, shrubs, grass and any other plants. So a flower garden can be licensed. Each frontage needs a separate licence. The safeguards for the public are different from where the council does the work. In particular, there is no power to license the frontager to erect stakes or a fence or other protection. Also it is left to the discretion of the authority to include in the licence any necessary conditions ‘to ensure the safety and convenience of passengers in the highway and to prevent traffic therein being delayed’.
5.3 Under some local legislation, where a particular highway verge is ‘mown or otherwise maintained in an ornamental condition’, perhaps under the above powers, the council can prohibit horses on it. In Essex the provision is circumscribed by useful amendments secured by petitioners while the Essex Bill (now the Essex Act 1987) was going through parliament (3).
5.4 Anyone concerned for the rights of the public over a highway verge should be watchful of these council powers. It would be helpful to get a copy of any provision in local legislation. While walkers and riders are being ousted from carriage-ways by traffic, it would be very wrong if they are ousted too from their use of such verge as there is.

(2) Highways Act 1980, ss.96 and 142

(3) S.6(2)(c) obliges the local authority to: ‘…consult the British Horse Society and the Byways and Bndleways Trust before exercising the powers of [prohibition of entry] so as to prohibit the entry of horses onto any land forming part of a highway.’

6. The highway may not include all the open land beside it

6.1 By no means is it implied that all land which lies open to the road is high-way, even where the road runs between enclosed properties. The highway may not extend to the physical boundaries. Such of the adjacent land as does lie within the highway limits is given a name by the Highways Act 1980, section 130: ‘roadside waste comprised in a highway’. The word ‘waste’ carries no derogatory or dismissive sense, any more than when we speak of the waste land of a manor or manorial waste. Sometimes roadside waste is indeed manorial waste but not necessarily so.
6.2 The words of section 130 concede that uncultivated land which lies open to a public road can be called roadside waste even when it is not comprised in the highway. When we see some pleasant roadside waste how can we tell whether the whole of it or part of it is comprised in the highway?
6.3 No statutory map exists for demarcating the highway boundary. But many highway authorities keep informal maps of ‘highway extent’, which show, in the opinion of officers, the width of publicly-maintainable highways (frequently, these may be based on nothing more than what appears to be shown on old maps as the highway boundary). In a case where the highway authority thinks some stretch of roadside waste is unnecessarily wide for the needs of a modern road, it may be less than enthusiastic about exercising or asserting highway rights over the ‘excess’ width. It may even propose making an extinguishment order whereby the ‘excess’ would revert to the frontager.
6.4 Conversely, where the highway boundary is not physically defined, a frontager may be found pushing the boundary outwards too far, perhaps by ploughing or afforestation or gardening. Failing precise evidence of highway dedication, a compromise line may be agreed with the frontager, and marked with posts.

7. Registered roadside waste

7.1 Much roadside waste was registered as common land under the Commons Registration Act 1965(4), perhaps right up to the carriageway. Some highway surveyors objected at the provisional stage and asked for what they regarded as a suitable width of verge to be taken off the register. This was because, for registration purposes, common land was defined not to include any land which forms part of a highway, and it was thought that registration might be seen as evidence against highway rights over that verge. This would make carriageway widening difficult.
7.2 Town and village greens were defined differently from common land, so as not to exclude any highway running over them. But this by no means implies that greens can be pared back for carriageway widening, even if there is evidence of highway rights beyond the carriageway edge. In the society’s view, widening a highway verge (even if highway rights are proven) which forms part of a registered town or village green demands that the green be deregistered.

(4) Such land may now be registered as common land under Part 1 of the Commons Act 2006.

8. Roads under inclosure awards

8.1 In each case, the true line of the highway boundary is a mixed question of fact and law. Perhaps the simplest case is where a ‘public carriage road or highway’ was allotted by an inclosure award, for the award defines the width in feet and usually requires a wall or ditch to be constructed and maintained immediately out-side the highway limit; that is to say, the measurement is taken ‘between the ditches’ or the walls.
8.2 A range of standard widths was adopted, varying somewhat between different localities and different inclosure commissioners. The Inclosure Act 1801 required an allotted public carriageway to be 30 feet wide at the least, the 1845 act 20 feet. The widths of allotted highways normally differ from those for private occupation roads in the same award. Often the width can be seen to change where the awarded road ends, such as at a parish boundary.

9. Turnpike roads

9.1 Turnpike trustees making a road through enclosed land would have to negotiate for the width they needed. But after 1828 they were empowered to make or widen a road across ‘any common or waste lands, without making any satisfaction…so that such road shall not exceed sixty feet in width (5)’. A similar clause might be found locally in earlier acts. It may help to be aware of this maximum width, particularly in relation to former turnpike roads constructed across common land (whether or not it remains common land).

(5) General Turnpike Road Act 1828 section IX.

10. The evidence of walls and fences

10.1 Where there are physical boundaries on both sides of the road which seem to have been aligned by reference to it, one starts with a presumption of law that the whole width between them is highway. It has been expressly stated by the courts that this is no less applicable where the width of the road is ‘varying and unequal’, than it is where the width is uniform(6).
10.2 Where evidence is lacking either for or against the roadside land having been dedicated as highway, the law presumes ‘that the public right of passage, and therefore the highway, extends to the whole space between the fences and is not confined to such part as may have been made up. In other words, the fences do mark the limit of the highway unless there is something in the condition of the road or the circumstances to the contrary(7)’.
10.3 It is necessary to consider what sort of layout might amount to ‘something in the condition of the road or the circumstances to the contrary’, such as to show that the physical boundaries were not aligned by reference to the road. This might be the case where a road has been constructed through a preexisting enclosure without erecting new roadside fences.
10.4 On principle, the presumption should apply equally where the road was aligned alongside and by reference to an existing fence, as where a fence was aligned alongside and by reference to an existing road; but the courts do not seem yet to have dealt specifically with the former case.
10.5 Other examples occur of physical boundaries that were not constructed by reference to the road. One case is where they mark the back edge of common land or a village green and appear unrelated to the highway (other than that the highway happens to run close to the boundary). Another case is the entrance to adjoining property where the fences are set back — though the layout can prove difficult to interpret, especially at a road corner.

(6) R v United Kingdom Electric Telegraph Co Ltd (1862) 31 LJMC 166 at 167.

(7) Attorney-General v Benyon [1969] 2 WLR 1447, per Goff LJ at 1453.

11. Road across open land

11.1 It has been stated by the Country Land and Business Association that ‘where a metal road crosses unenclosed land, and there is no indication of the limits of the highway by fences, ditches etc then the presumption is that the public right of way is limited to the metal track(8)’.
11.2 Assuming that is correct, this presumption could be displaced by sufficient evidence of public use; but the sufficiency would have to be considered in the light of the decision in Countess of Belmore v Kent County Council showing (to summarise) that evidence of merely occasional uses of roadside waste did not necessarily establish it as highway(9). Old stones set a little way back from the carriageway can sometimes be found; evidently an ancient attempt to define the width.

(8) Advisory Memorandum L3/88.

(9) [1901] 1 Ch 873

12. Special cases

12.1 It is easy to think of special cases where roadside waste adds greatly to the texture, the beauty, the interest and the utility of the place. One thinks of the land in a road fork, which may be a substantial area locally called a ‘cocked hat’. There is the land between a road and an adjacent river. Modern road-making has created strips between the main road and its service road, and between the old road and a realigned one. There are modern ‘open plan’ frontages, some at least of which are declared to be part of the highway. In some cases a public footpath or bridleway runs along the waste independently of the adjacent highway comprising the carriageway. The status of all these depends on the particular facts.

13. Ownership

13.1 If a highway is publicly maintainable — as most public roads are — the surface is vested in the highway authority in fee simple. This includes the surface of roadside waste comprised in the highway(10). Therefore the consent would be needd of the highway authority, simply as owner, for the frontager to do such things on the verge as creating a garden or planting shrubs or making impediments with stones, posts or chains; for these things would be on land vested in the authority.
13.2 However the authority’s ownership confers no power to give consent for any obstruction on the highway unless authorised by statute: see paragraphs #11–13 above. No less is that the case where the authority has acquired the full freehold, of the surface and subsoil, for road widening or construction.
13.3 Frontagers sometime argue that an area of roadside waste is ‘on their deeds’ and therefore not part of the highway. This is an entirely false argument. Adjoining owners are normally presumed to own up to the centre line of the highway, whether or not it is on their deeds.
13.4 All land is owned by someone, so every highway is over someone’s land. But this ownership is of the subsoil only, for not even where their deeds expressly include the land does this affect the statutory vesting of the surface in the highway authority.
13.5 The ownership of roadside waste not comprised in a highway is often unknown. That may be the very reason why the land has remained open and unenclosed. Locally it may be thought that the land was originally manorial waste, but there is no legal presumption of this, and any claim that it is still manorial waste would have to be proved in conveyancing terms. In one reported case, old maps showed it to have formerly been an enclosed plot.

(10) For ownership of the subsoil see Rights of Way, p.21.

14. Grazing

14.1 Where a road allotted by an inclosure award comprised useful herbage, the award might allot the grazing rights to parish officers to be let annually at a rent in aid of parish funds. This is the ceremony known as ‘letting the lanes’. The right has been inherited either by the present highway authority or by the parish council.

15. Margins for horses and livestock

15.1 The Highways Act 1980 provided as follows:
‘It is the duty of a highway authority to provide in or by the side of a highway maintainable at the public expense by them which consists of or comprises a made-up carriageway adequate grass or other margins as part of the highway in any case where they consider the provision of margins necessary or desirable for the safety or accommodation of ridden horses and driven livestock… (11).’
15.2 The words ‘in or by the side of a highway’ enable the riding or droving strip to be put at either the front or the back side of the fence bounding the road. But the decision whether a strip is ‘necessary or desirable’ at all lies within the discretion of the authority: a discretion to be exercised reasonably.

(11) Highways Act 1980, s.71(1).

16. Protection of public rights

16.1 The Highways Act 1980 also provides as follows:
‘(1) It is the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste which forms part of it.
(2) Any council may assert and protect the rights of the public to the use and enjoyment of any highway in their area for which they are not the highway authority, including any roadside waste which forms part of it.
(4) Without prejudice to the foregoing provisions of this section, it is the duty of a local highway authority to prevent any unlawful encroachment on any road-side waste comprised in a highway for which they are the highway authority.
(6) If the council of a parish or community [or, in the case of a parish or community which does not have a separate parish or community council, the parish meeting or a community meeting](12) represent to a local highway authority…
(b) that an unlawful encroachment has taken place on a roadside waste comprised in a highway for which they are the highway authority, it is the duty of the local highway authority, unless satisfied that the representations are incorrect, to take proper proceedings accordingly and they may do so in their own name(13).

16.2 The remedies available to a highway authority for implementing its section 130 duty, and also the following two High Court decisions, are detailed on pages 243–245 of Rights of Way.
16.3 In R v Surrey County Council ex parte Send Parish Council(14), a parish council succeeded in enforcing subsection (6) against the county council who wanted to substitute another highway instead of doing its duty towards the existing one.
16.4 In R v Lancashire County Council ex parte Guyer(15), a serious dispute existed over whether the way in question was a highway, and the county council was held justified in declining to act under the section.
16.5 For more information about the power conferred on parishes to enforce against unlawful encroachments on roadside waste, see the society’s information sheet Parishes dealing with highway obstructions.

(12) Subs.(6) has been clarified here by inserting brackets.

(13) Highways Act 1980, s.130 (part).

(14) [1979] JPL 613 DC.

(15) [1980] 1 WLR 1024.

17. How highway maintenance affects nature conservation

Other aspects which will interest the ecologically-conscious verge-watcher are revealed by a survey published by the former Nature Conservancy in 1972(16).
51. A total area was estimated for England and Wales of 178,000 hectacres of ‘land associated with highways’ excluding the metalled carriageways. By visiting 58 county highway departments it was established that some 97,000 hectacres of that total were actively managed by cutting or otherwise. The amenity value of verges was recognised by the departments as just one benefit among others:
a. in giving visibility at bends,
b. in providing space for apparatus, snow, salt, vehicles in emergency, and road drainage,
c. in ‘fitting’ a road, into its surroundings, to the psychological benefit of road users,
d. in separating pedestrians and horse riders from vehicles,
e. in providing ‘an area of countryside to which the public has unhindered access within limits imposed by traffic’, and
f. in the conservation of natural fauna and flora of the countryside.
52. The survey found that the conservation of nature on rural verges was much affected by the way they were managed by highway departments. Wide diversity was revealed in both methods and objectives. There were differences in when and how the vegetation was cut, in the use of chemicals for control-ling growth, in whether road sweepings were deposited on them, in salting policies with consequent spray, and in other factors. There were local differences too in constructing verges, in their height relative to the carriageway, in the seed mixtures used and as to the importing of topsoil, all affecting them as habitats.
53. Highway departments, and perhaps local divisional surveyors, each had their own thoughts on management. Yet ‘in formulating their verge maintenance programmes, counties are clearly influenced by what people (either in organisations, or individually) say they want…In general there is greater public pressure for more cutting rather than less…Complaints of too much cut-ting tend to be concerned with…wildlife…’.
54. However, if matters are still as they were in 1972 (and there is little reason to conclude that these tensions have been resolved), there is room for public opinion to make itself felt: ‘in any county the number of complaints in any one season may number fewer than a dozen unless a really controversial policy is adopted…’. Comments from representative organisations were specially valued.

(16) J M Way, Road Verges on Rural Roads.

This information sheet was written by the late Richard Harland, a former trustee of the society.
While the Open Spaces Society has made every effort to ensure the information obtained in this information sheet is an accurate summary of the subject as at the date of publication, it is unable to accept liability for any misinterpretation of the law or any other error or omission in the advice in this information sheet.

© Open Spaces Society, November 2019

Further resources about Registered common land and highways

  • Deregulation Act

    A small but important part of the act concerns public rights of way, and will take effect once the regulations and guidance have been completed.

  • Claiming a Public Footpath

    It is possible to apply to include on the definitive map routes which have been used by the public, ‘as of right’.

  • Getting Decent Widths in Path Diversion Orders

    Some slightly random thoughts on the matter to encourage action.

  • Information on Highway Verges

    Along many of the highways of England and Wales are to be found strips of land open to the public.

  • Parishes dealing with highway obstructions

    Town, parish and community councils are likely to take a strong proprietorial interest in their parish rights of way, and in their local highway network generally.

  • Frequently asked questions: Rights of Way

    Common questions about rights of way.

  • Government Guidance - Public Access and Rights of Way in England

    Insider hacks: three Government publications that will help you to protect public access and rights of way.

  • Taking action

    Challenging councils who have failed to make progress with definitive map change applications

  • Local Access Forums: role of the local authority

    As a local authority or national park authority, find out what responsibilities you have for your LAF.

  • Local authority rights of way improvement plans

    As a local authority you must review your rights of way improvement plan every 10 years.

  • Authorising structures on rights of way

    Good practice guidance for local authorities on compliance with the Equality Act 2010

  • Path Paraphernalia

    Removing and improving path-paraphernalia

  • Restoring the Record

    Our former trustee, Phil Wadey, and his colleague Sarah Bucks have published the second edition of their book, Rights of Way – Restoring the Record

  • What to do about overgrown paths

    Our recommended action if you happen to come across an overgrown path.

Registered common land and highways

The Open Spaces Society has been defending open spaces in England and Wales since 1865.

This fact sheet is brought to you by the Open Spaces Society - We campaign for stronger protection for common land, village greens, open spaces, and public paths in England and Wales, and for greater opportunities for everyone to enjoy them. As a small charity, memberships are vital to our ability to continue to support more than 600 cases annually helping individuals, groups and communities to save their local green spaces and paths. Individual membership costs £3/month. Join us today.

1. The long-standing problem of encroachments

1.1 Open land beside our roads has always been vulnerable to encroachment and the society was involved from its start in 1865. Take two encroachment cases, from north and south.
1.2 A Yorkshire writer in 1889 lamented the ‘poor, cramped appearance, narrow and confined irregularities’ of the road from Easingwold to Northallerton, due to ‘adjacent property owners having annexed the rich green borders with which it was once margined’. That probably occurred before the society’s formation.
1.3 In Hertfordshire in 1867 the young society showed its teeth in a delicious battle of landowning Titans. Lord Salisbury fenced in a strip of roadside waste; Lord Cowper (whose access was obstructed) acting on the society’s advice ‘collected a large body of tenants and labourers who under his personal superintendence removed the whole of the fences in one night’.
1.4 The young George Shaw-Lefevre, the society’s founder and later its president and chairman, was obviously behind this; he had already dealt with a roadside encroachment near his home at Ascot and the thing rankled until much later when, as an MP and minister, he saw to it that the protection of roadside wastes became an express task of the new county councils in 1888 and the new district and parish councils in 1894.
1.5 Before the war the society published a pamphlet, Roadside Wastes, by the late W R Hornby Steer, MA LLB, its standing counsel. This appeared first as an article in the society’s Journal in July 1936, was revised in 1946 and again in 1994, and subsequently published as an information sheet, Highway Verges l. It drew on long experience and quoted at length from leading judgments in the courts. The availability now of detailed legal commentary in the society’s book Rights of Way(1)—a guide to law and practice enables this briefing to take a different approach. It complements the book throughout but a few specific references have been given.

(1) John Riddall and John Trevelyan, 4th edition, 2007

 

2. A road is wider than its maintained carriageway

2.1 Where a road runs between enclosed properties there is usually on each side of the hard carriageway a strip of land which, physically at least, is open to the public. The strip may be occupied by a pavement, or carriageway widening may have reduced it to a mere vestige.
2.2 But in typical landscape we can enjoy two grass verges. They may be uni-form in width for long stretches, or the back boundary can be irregular and full of variety. The eye of an archaeologist or the patience of a local historian may be needed to say why any particular strip of verge has its own special width and shape, and when its back boundary came to be what it is—a bank, a hedge, a field wall or the wall of a building.
2.3 Where the road runs through land that is not enclosed, there may be nothing to show how much of the adjoining land belongs to the road. Quite probably none of it does unless proved otherwise (see paragraphs #34 and #35 below).

3. A road has to accommodate all its lawful users

3.1 What we now call a road is usually a route intended for multiple uses: for walking, riding or driving stock, and for wheeled traffic. Only ‘special roads’, especially motorways, or roads subject to a traffic regulation order, are restricted.
3.2 That was not always so. Many highways that were called roads were not used, intended or even practicable for wheeled traffic. The very names ‘drove road’ and ‘packhorse road’ illustrate this. There was not much wheeled traffic until at most 250 years ago and then only on particular roads. A bridleway could be called a road. It is an anachronism to suppose that a ‘road’ shown on an eighteenth-century map was necessarily a carriageway.
3.3 Before public roads were properly made and maintained, the users needed freedom to deviate and to find the best route over an adequately wide strip of open land. This was so whether one travelled on foot or horseback, with a horse-drawn vehicle, or droving cattle or sheep.
3.4 Where local conditions rendered the road swampy or liable to erode, the strip would be wider than where the ground was hard and well drained. Only if the ad-joining land was being inclosed or became cultivated was it necessary to define what open width travellers needed; then the landholder must either leave enough for any necessary deviation, or must accept liability for maintaining a roadway such as to be serviceable without deviation. Normally the landowner chose the former so that the parish would remain liable for maintenance.
3.5 Proper maintenance removes the need to deviate. But today, with maintained carriageways used to their limit by vehicles, a verge is essential on many roads for enabling pedestrians and horse-riders to use them safely. Where carriageway widening has left insufficient level verge, vehicles will soon oust from the highway all pedestrians and horse-riders who care for their safety. Highway authorities and the public purse have been party to this appropriation of roads by vehicles. The loss of verges for ridden horses results surely from an unreasonably narrow interpretation by highway authorities of their statutory duty (see paragraph 43 be-low).

4. The full width of a public road is a highway

4.1 When open land lies alongside a public road, and the public uses it for passage, the presumption will arise that the land has been dedicated as part of the highway (Rights of Way, pages 42–59). The rule is: once a highway, always a high-way, even if the needs and habits of the public have changed and the land is now little used. So this open land is just as integral to the highway as the metalled carriageway is.
4.2 Only with the specific authority of statute are obstructions lawful, such as traffic signs and bus shelters and new trees and certain apparatus of statutory undertakers. Even for road-stone knapping dumps — once commonplace along publicly-maintained roads — the old highway authorities would often acquire plots extending back from the road, rather than use the verge.

5. Planting and mowing the verge (2)

5.1 Highway authorities lawfully may put trees, shrubs and plants within the highway limits, and lay out the verge, and protect these with guard rails and even fences. A district or parish council can do the same with the highway authority’s consent. However the public has some safeguard: none of this may be done ‘in such a situation as to hinder the reasonable use of highway by any person entitled to use it’.
5.2 A frontager too can be licensed by the highway authority to plant and maintain trees, shrubs, grass and any other plants. So a flower garden can be licensed. Each frontage needs a separate licence. The safeguards for the public are different from where the council does the work. In particular, there is no power to license the frontager to erect stakes or a fence or other protection. Also it is left to the discretion of the authority to include in the licence any necessary conditions ‘to ensure the safety and convenience of passengers in the highway and to prevent traffic therein being delayed’.
5.3 Under some local legislation, where a particular highway verge is ‘mown or otherwise maintained in an ornamental condition’, perhaps under the above powers, the council can prohibit horses on it. In Essex the provision is circumscribed by useful amendments secured by petitioners while the Essex Bill (now the Essex Act 1987) was going through parliament (3).
5.4 Anyone concerned for the rights of the public over a highway verge should be watchful of these council powers. It would be helpful to get a copy of any provision in local legislation. While walkers and riders are being ousted from carriage-ways by traffic, it would be very wrong if they are ousted too from their use of such verge as there is.

(2) Highways Act 1980, ss.96 and 142

(3) S.6(2)(c) obliges the local authority to: ‘…consult the British Horse Society and the Byways and Bndleways Trust before exercising the powers of [prohibition of entry] so as to prohibit the entry of horses onto any land forming part of a highway.’

6. The highway may not include all the open land beside it

6.1 By no means is it implied that all land which lies open to the road is high-way, even where the road runs between enclosed properties. The highway may not extend to the physical boundaries. Such of the adjacent land as does lie within the highway limits is given a name by the Highways Act 1980, section 130: ‘roadside waste comprised in a highway’. The word ‘waste’ carries no derogatory or dismissive sense, any more than when we speak of the waste land of a manor or manorial waste. Sometimes roadside waste is indeed manorial waste but not necessarily so.
6.2 The words of section 130 concede that uncultivated land which lies open to a public road can be called roadside waste even when it is not comprised in the highway. When we see some pleasant roadside waste how can we tell whether the whole of it or part of it is comprised in the highway?
6.3 No statutory map exists for demarcating the highway boundary. But many highway authorities keep informal maps of ‘highway extent’, which show, in the opinion of officers, the width of publicly-maintainable highways (frequently, these may be based on nothing more than what appears to be shown on old maps as the highway boundary). In a case where the highway authority thinks some stretch of roadside waste is unnecessarily wide for the needs of a modern road, it may be less than enthusiastic about exercising or asserting highway rights over the ‘excess’ width. It may even propose making an extinguishment order whereby the ‘excess’ would revert to the frontager.
6.4 Conversely, where the highway boundary is not physically defined, a frontager may be found pushing the boundary outwards too far, perhaps by ploughing or afforestation or gardening. Failing precise evidence of highway dedication, a compromise line may be agreed with the frontager, and marked with posts.

7. Registered roadside waste

7.1 Much roadside waste was registered as common land under the Commons Registration Act 1965(4), perhaps right up to the carriageway. Some highway surveyors objected at the provisional stage and asked for what they regarded as a suitable width of verge to be taken off the register. This was because, for registration purposes, common land was defined not to include any land which forms part of a highway, and it was thought that registration might be seen as evidence against highway rights over that verge. This would make carriageway widening difficult.
7.2 Town and village greens were defined differently from common land, so as not to exclude any highway running over them. But this by no means implies that greens can be pared back for carriageway widening, even if there is evidence of highway rights beyond the carriageway edge. In the society’s view, widening a highway verge (even if highway rights are proven) which forms part of a registered town or village green demands that the green be deregistered.

(4) Such land may now be registered as common land under Part 1 of the Commons Act 2006.

8. Roads under inclosure awards

8.1 In each case, the true line of the highway boundary is a mixed question of fact and law. Perhaps the simplest case is where a ‘public carriage road or highway’ was allotted by an inclosure award, for the award defines the width in feet and usually requires a wall or ditch to be constructed and maintained immediately out-side the highway limit; that is to say, the measurement is taken ‘between the ditches’ or the walls.
8.2 A range of standard widths was adopted, varying somewhat between different localities and different inclosure commissioners. The Inclosure Act 1801 required an allotted public carriageway to be 30 feet wide at the least, the 1845 act 20 feet. The widths of allotted highways normally differ from those for private occupation roads in the same award. Often the width can be seen to change where the awarded road ends, such as at a parish boundary.

9. Turnpike roads

9.1 Turnpike trustees making a road through enclosed land would have to negotiate for the width they needed. But after 1828 they were empowered to make or widen a road across ‘any common or waste lands, without making any satisfaction…so that such road shall not exceed sixty feet in width (5)’. A similar clause might be found locally in earlier acts. It may help to be aware of this maximum width, particularly in relation to former turnpike roads constructed across common land (whether or not it remains common land).

(5) General Turnpike Road Act 1828 section IX.

10. The evidence of walls and fences

10.1 Where there are physical boundaries on both sides of the road which seem to have been aligned by reference to it, one starts with a presumption of law that the whole width between them is highway. It has been expressly stated by the courts that this is no less applicable where the width of the road is ‘varying and unequal’, than it is where the width is uniform(6).
10.2 Where evidence is lacking either for or against the roadside land having been dedicated as highway, the law presumes ‘that the public right of passage, and therefore the highway, extends to the whole space between the fences and is not confined to such part as may have been made up. In other words, the fences do mark the limit of the highway unless there is something in the condition of the road or the circumstances to the contrary(7)’.
10.3 It is necessary to consider what sort of layout might amount to ‘something in the condition of the road or the circumstances to the contrary’, such as to show that the physical boundaries were not aligned by reference to the road. This might be the case where a road has been constructed through a preexisting enclosure without erecting new roadside fences.
10.4 On principle, the presumption should apply equally where the road was aligned alongside and by reference to an existing fence, as where a fence was aligned alongside and by reference to an existing road; but the courts do not seem yet to have dealt specifically with the former case.
10.5 Other examples occur of physical boundaries that were not constructed by reference to the road. One case is where they mark the back edge of common land or a village green and appear unrelated to the highway (other than that the highway happens to run close to the boundary). Another case is the entrance to adjoining property where the fences are set back — though the layout can prove difficult to interpret, especially at a road corner.

(6) R v United Kingdom Electric Telegraph Co Ltd (1862) 31 LJMC 166 at 167.

(7) Attorney-General v Benyon [1969] 2 WLR 1447, per Goff LJ at 1453.

11. Road across open land

11.1 It has been stated by the Country Land and Business Association that ‘where a metal road crosses unenclosed land, and there is no indication of the limits of the highway by fences, ditches etc then the presumption is that the public right of way is limited to the metal track(8)’.
11.2 Assuming that is correct, this presumption could be displaced by sufficient evidence of public use; but the sufficiency would have to be considered in the light of the decision in Countess of Belmore v Kent County Council showing (to summarise) that evidence of merely occasional uses of roadside waste did not necessarily establish it as highway(9). Old stones set a little way back from the carriageway can sometimes be found; evidently an ancient attempt to define the width.

(8) Advisory Memorandum L3/88.

(9) [1901] 1 Ch 873

12. Special cases

12.1 It is easy to think of special cases where roadside waste adds greatly to the texture, the beauty, the interest and the utility of the place. One thinks of the land in a road fork, which may be a substantial area locally called a ‘cocked hat’. There is the land between a road and an adjacent river. Modern road-making has created strips between the main road and its service road, and between the old road and a realigned one. There are modern ‘open plan’ frontages, some at least of which are declared to be part of the highway. In some cases a public footpath or bridleway runs along the waste independently of the adjacent highway comprising the carriageway. The status of all these depends on the particular facts.

13. Ownership

13.1 If a highway is publicly maintainable — as most public roads are — the surface is vested in the highway authority in fee simple. This includes the surface of roadside waste comprised in the highway(10). Therefore the consent would be needd of the highway authority, simply as owner, for the frontager to do such things on the verge as creating a garden or planting shrubs or making impediments with stones, posts or chains; for these things would be on land vested in the authority.
13.2 However the authority’s ownership confers no power to give consent for any obstruction on the highway unless authorised by statute: see paragraphs #11–13 above. No less is that the case where the authority has acquired the full freehold, of the surface and subsoil, for road widening or construction.
13.3 Frontagers sometime argue that an area of roadside waste is ‘on their deeds’ and therefore not part of the highway. This is an entirely false argument. Adjoining owners are normally presumed to own up to the centre line of the highway, whether or not it is on their deeds.
13.4 All land is owned by someone, so every highway is over someone’s land. But this ownership is of the subsoil only, for not even where their deeds expressly include the land does this affect the statutory vesting of the surface in the highway authority.
13.5 The ownership of roadside waste not comprised in a highway is often unknown. That may be the very reason why the land has remained open and unenclosed. Locally it may be thought that the land was originally manorial waste, but there is no legal presumption of this, and any claim that it is still manorial waste would have to be proved in conveyancing terms. In one reported case, old maps showed it to have formerly been an enclosed plot.

(10) For ownership of the subsoil see Rights of Way, p.21.

14. Grazing

14.1 Where a road allotted by an inclosure award comprised useful herbage, the award might allot the grazing rights to parish officers to be let annually at a rent in aid of parish funds. This is the ceremony known as ‘letting the lanes’. The right has been inherited either by the present highway authority or by the parish council.

15. Margins for horses and livestock

15.1 The Highways Act 1980 provided as follows:
‘It is the duty of a highway authority to provide in or by the side of a highway maintainable at the public expense by them which consists of or comprises a made-up carriageway adequate grass or other margins as part of the highway in any case where they consider the provision of margins necessary or desirable for the safety or accommodation of ridden horses and driven livestock… (11).’
15.2 The words ‘in or by the side of a highway’ enable the riding or droving strip to be put at either the front or the back side of the fence bounding the road. But the decision whether a strip is ‘necessary or desirable’ at all lies within the discretion of the authority: a discretion to be exercised reasonably.

(11) Highways Act 1980, s.71(1).

16. Protection of public rights

16.1 The Highways Act 1980 also provides as follows:
‘(1) It is the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste which forms part of it.
(2) Any council may assert and protect the rights of the public to the use and enjoyment of any highway in their area for which they are not the highway authority, including any roadside waste which forms part of it.
(4) Without prejudice to the foregoing provisions of this section, it is the duty of a local highway authority to prevent any unlawful encroachment on any road-side waste comprised in a highway for which they are the highway authority.
(6) If the council of a parish or community [or, in the case of a parish or community which does not have a separate parish or community council, the parish meeting or a community meeting](12) represent to a local highway authority…
(b) that an unlawful encroachment has taken place on a roadside waste comprised in a highway for which they are the highway authority, it is the duty of the local highway authority, unless satisfied that the representations are incorrect, to take proper proceedings accordingly and they may do so in their own name(13).

16.2 The remedies available to a highway authority for implementing its section 130 duty, and also the following two High Court decisions, are detailed on pages 243–245 of Rights of Way.
16.3 In R v Surrey County Council ex parte Send Parish Council(14), a parish council succeeded in enforcing subsection (6) against the county council who wanted to substitute another highway instead of doing its duty towards the existing one.
16.4 In R v Lancashire County Council ex parte Guyer(15), a serious dispute existed over whether the way in question was a highway, and the county council was held justified in declining to act under the section.
16.5 For more information about the power conferred on parishes to enforce against unlawful encroachments on roadside waste, see the society’s information sheet Parishes dealing with highway obstructions.

(12) Subs.(6) has been clarified here by inserting brackets.

(13) Highways Act 1980, s.130 (part).

(14) [1979] JPL 613 DC.

(15) [1980] 1 WLR 1024.

17. How highway maintenance affects nature conservation

Other aspects which will interest the ecologically-conscious verge-watcher are revealed by a survey published by the former Nature Conservancy in 1972(16).
51. A total area was estimated for England and Wales of 178,000 hectacres of ‘land associated with highways’ excluding the metalled carriageways. By visiting 58 county highway departments it was established that some 97,000 hectacres of that total were actively managed by cutting or otherwise. The amenity value of verges was recognised by the departments as just one benefit among others:
a. in giving visibility at bends,
b. in providing space for apparatus, snow, salt, vehicles in emergency, and road drainage,
c. in ‘fitting’ a road, into its surroundings, to the psychological benefit of road users,
d. in separating pedestrians and horse riders from vehicles,
e. in providing ‘an area of countryside to which the public has unhindered access within limits imposed by traffic’, and
f. in the conservation of natural fauna and flora of the countryside.
52. The survey found that the conservation of nature on rural verges was much affected by the way they were managed by highway departments. Wide diversity was revealed in both methods and objectives. There were differences in when and how the vegetation was cut, in the use of chemicals for control-ling growth, in whether road sweepings were deposited on them, in salting policies with consequent spray, and in other factors. There were local differences too in constructing verges, in their height relative to the carriageway, in the seed mixtures used and as to the importing of topsoil, all affecting them as habitats.
53. Highway departments, and perhaps local divisional surveyors, each had their own thoughts on management. Yet ‘in formulating their verge maintenance programmes, counties are clearly influenced by what people (either in organisations, or individually) say they want…In general there is greater public pressure for more cutting rather than less…Complaints of too much cut-ting tend to be concerned with…wildlife…’.
54. However, if matters are still as they were in 1972 (and there is little reason to conclude that these tensions have been resolved), there is room for public opinion to make itself felt: ‘in any county the number of complaints in any one season may number fewer than a dozen unless a really controversial policy is adopted…’. Comments from representative organisations were specially valued.

(16) J M Way, Road Verges on Rural Roads.

This information sheet was written by the late Richard Harland, a former trustee of the society.
While the Open Spaces Society has made every effort to ensure the information obtained in this information sheet is an accurate summary of the subject as at the date of publication, it is unable to accept liability for any misinterpretation of the law or any other error or omission in the advice in this information sheet.

© Open Spaces Society, November 2019

Further resources about Registered common land and highways

  • Deregulation Act

    A small but important part of the act concerns public rights of way, and will take effect once the regulations and guidance have been completed.

  • Claiming a Public Footpath

    It is possible to apply to include on the definitive map routes which have been used by the public, ‘as of right’.

  • Getting Decent Widths in Path Diversion Orders

    Some slightly random thoughts on the matter to encourage action.

  • Information on Highway Verges

    Along many of the highways of England and Wales are to be found strips of land open to the public.

  • Parishes dealing with highway obstructions

    Town, parish and community councils are likely to take a strong proprietorial interest in their parish rights of way, and in their local highway network generally.

  • Frequently asked questions: Rights of Way

    Common questions about rights of way.

  • Government Guidance - Public Access and Rights of Way in England

    Insider hacks: three Government publications that will help you to protect public access and rights of way.

  • Taking action

    Challenging councils who have failed to make progress with definitive map change applications

  • Local Access Forums: role of the local authority

    As a local authority or national park authority, find out what responsibilities you have for your LAF.

  • Local authority rights of way improvement plans

    As a local authority you must review your rights of way improvement plan every 10 years.

  • Authorising structures on rights of way

    Good practice guidance for local authorities on compliance with the Equality Act 2010

  • Path Paraphernalia

    Removing and improving path-paraphernalia

  • Restoring the Record

    Our former trustee, Phil Wadey, and his colleague Sarah Bucks have published the second edition of their book, Rights of Way – Restoring the Record

  • What to do about overgrown paths

    Our recommended action if you happen to come across an overgrown path.

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