Termination of highway rights
What is the termination of highway rights?
The termination of highway rights means that highway rights will be permanently removed from (part of) a road or way. This process is known as "stopping up". Highway rights cannot be removed or diverted by lack of use, unlawful enclosure or encroachment upon the land, regardless of the length of time that the highway has been out of use for or how long an enclosure or encroachment has existed.
How can the highway be stopped up?
A legal order is required for highway rights to be removed or diverted. Stopping Up applications can be made in two ways:
Under Section 247 Town & Country Planning Act 1990:
You will usually be either a developer or a consultant working on behalf of one and wish to have the highway stopped up for development reasons, e.g. to construct a new highway scheme. These applications are administered by the Secretary of State via DfT and include the County Council (as local highway authority) as a consultee. These applications require planning permission to either be in place or be in the process of being applied for. Since the Growth & Infrastructure Act 2013, applications can now be submitted ahead of planning permission being granted to help accelerate the process, however, the Secretary of State must be satisfied that the highway rights need to be removed for the development to proceed.
It is recommended that you contact us before applying to DfT so that we can review your proposal prior to your application to the DfT and effectively provide you with an 'approval in principle'. Once a draft order has been published by DfT and provided to us for comments as part of the consultation, there is a risk of changes required which may mean restarting the process and deminishing the benefit of making an early application.
Under Section 117 Highways Act 1980:
You will usually be a local resident or frontager and wish to have the highway stopped up for non-developmental reasons, e.g. to privately purchase the land for your own needs. This application is made to the County Council who will make an application to the Magistrates Court under Section 116 Highways Act 1980 on your behalf. This doesn't require planning permission.
How much does a Stopping Up order cost?
For both S247 and S117 applications, a non-refundable upfront fee of £420 is required at application to cover admin and our investigations.
From these investigations, if the land is deemed surplus, and you wish to proceed with your application under Section 117 Highways Act 1980, a solictor's undertaking of £10,000 min. will be required to cover advertising, legal and court costs. Our legal team will discuss this with you. For applications under Section 247 Town & Country Planning Act 1990 further fees may be required by the DfT and it is advised you contact them for further information.
How do I apply?
For both types of application, you firstly need to ensure you have the correct land ownerships details (which may not be the County Council) and that the land is Highway Maintainable at Public Expense (HMPE). To check on land ownership details please contact the Land Registry. To check if the land is HMPE, we can undertake a Highway Extent search for you and will provide you with a plan which will show HMPE in your specified location. If applying for a highway extent search as part of a stopping up order, please make this known via the relevant question on the highway extent application. If the land is HMPE you can then apply for a Stopping Up order.
Apply online below to request a Stopping Up application and select which type of application you are making (i.e. either S247 or S117). We will investigate whether the land can be deemed surplus to highway requirements. If amendments are required, we will discuss with you at this stage.
- For applications made under S247: If the land can be declared surplus in principle, we will confirm this to you and if you wish to proceed, you will need to apply to the DfT. As part of their consultation process, they will contact us for comments, which we will confirm as having no objections. If the application is successful, the DfT will contact us to confirm the change and we will update our records.
For applications made under S117: When you apply under S117, if the land can be declared surplus, we will also request formal approval for this declaration and confirm this outcome to you. If approved, the Stopping Up process continues where the County Council applies under Section 116 Highways Act 1980 to the Magistrates Court on your behalf. The Magistrate will review the application and make the final decision, of which we inform you. If the outcome is successful we will update our records.
Please note: There is no guarantee that a Stopping Up order pursued under Section 116/117 Highways Act 1980 will be granted. Any costs encountered by the county council would be payable by you whether or not we pursue the order to its conclusion, and whether or not the magistrate grants the order.
Also, highways that are stopped up will revert to the legal land owner, or adjacent owners if the legal land owner can't be found. It is advised that independent legal advice is sought if a land owner cannot be established in order to reduce the possibility of legal action against you by the rightful owner, should they make themselves known in the future.
Licence to Plant
Alternatively, if you wish to undertake some planting of suitable species for your own decorative needs, there is another method that would allow you to do this whilst the highway rights are retained, negating the application and cost of a stopping up order. This is known as a Licence to Plant and further details can be obtained from firstname.lastname@example.org