Where areas of public highway are considered by the Highway Authority, (Hampshire County Council) to be surplus to highway requirements, the public rights of way – the highway rights – can be extinguished (cancelled) by an order made by the Magistrates Court under Section 116 of the Highways Act 1980.
When an order is made, this terminates the highway rights and frees the land from Highway Authority control and enable it to be enclosed or developed, subject to planning permission.
Once the highway rights are terminated, control over the land reverts to the freehold or leasehold owner of the subsoil. In many cases, this will not be the Highway Authority. Where the owner of the subsoil is known you will need to negotiate a transfer of the land to yourself; for example on more modern estate developments the land often still belongs to the developer or builder. It may be prudent to negotiate any costs involved prior to the extinguishment procedures being commenced.
Where the owner of the subsoil is not known and cannot be found, there is a rebuttable legal ‘presumption’ that the owners of the adjoining properties own the subsoil beneath the former highway out to the centre line of the former highway. This is more often the case with older areas of maintained highway. If you are the adjoining land owner the extinguishment procedure may therefore be sufficient to allow you to acquire some of the land without a formal transfer of Title in the land to yourself. It may be prudent for you to take independent legal advice with regard to land ownership issues.
The current cost of an extinguishment is £3,352, of which £1000 is a non returnable fee to cover the cost of consultations with all affected parties. These include:
A plan will be prepared by the County Council to show the area of land to be extinguished and will be agreed with the applicant prior to the commencement of preliminary consultations.
The balance of the fee comprises the cost of advertising the application and the Council’s legal fees in making the application in the Magistrates Court.
If an application is made to the Magistrates Court and it is refused the balance of the fee of £2000 is not refundable. The cost of any diversion of any Statutory Undertakers apparatus and/or the cost of entering into any wayleave/easement agreement is also to be met by the applicant.
The County Council may reserve their right to enter onto the land at any time for the purpose of cleansing or maintaining the highway drainage in accordance with their powers under Section 100 of the Highways Act 1980.
Where areas of publicly maintainable highway are affected by new development an application can be made to the Secretary of State for the ‘Stopping-Up’ of such areas.
The application is made to the Government Office for the South East, Hampshire & Isle of Wight Team, Bridge House, 1 Walnut Tree Close, Guildford, Surrey GU1 4GA. The Government Office will carry out the necessary consultations at no cost to the applicant. Such applications for ‘Stopping-Up’ of highways can only be made if new development has planning permission but cannot be used if works on site have commence. If development works have been ongoing over this period then an application has to be made under Section 116 of the Highways Act 1980 as described above.