Most rights of way in this country have been used continuously for many centuries and in some cases their existence can be traced back several thousand years. A recognisable highway administration did not emerge until the late Middle Ages, first being statutory regulated by legislation in 1555 which placed responsibility for maintenance under the Parish and overseen by the local Justices of the Peace.
The ad hoc and often ineffective maintenance of highways by the Parish meant that roads were virtually impassible for large parts of the year by wheeled vehicles except for very local journeys. The large increase in traffic created by the accelerating momentum of the Industrial Revolution in the late seventeenth century, required a much more reliable transport system. This was met by the creation of private companies and trusts for roads and canals and later, railways.
Turnpike roads were privately run and financed by tolls collected from the users. They consisted mostly of pre-existing main roads turnpiked by act of Parliament. Generally, through better administration and the ability to use new engineering techniques, they were of a much higher standard than the parish maintained roads. The turnpike trusts however, began to fail during the nineteenth century largely due to financial problems associated with over investment, falling income and competition from railways. Their responsibility was transferred back to public administration.
The parish responsibility for roads other than turnpikes was confirmed by the General Highways Act of 1835. However, it was already apparent that it was unfair upon parishes that they should have to pay for the maintenance of roads which were largely used by through traffic, ie non residents of the parish. Indeed many were unable to pay for maintenance. In 1848 the Public Health Act placed roads under local boards of health in the newly constituted urban administration areas and the Highways Act of 1862 combined most of the parishes for road administration purposes under the office of a County Surveyor.
In 1888 the Local Government Act was passed, by which the County Councils were created. These incorporated the County Surveyors set up in 1862. Thus responsibility for all public roads (including the turnpikes, although the last turnpike in the country continued until 1895) was vested in the County Council. Incidentally Hampshire was known as the County of Southampton (not to be confused with the City of Southampton) until the 1950s.
The other major milestone in highway legislation affecting public administration was the Trunk Road Act of 1936, whereby main through routes were taken under central government control and responsibility taken on by the then Ministry of Transport. Some roads have been the County Council's responsibility, trunked to become the Secretary of State for Transport's, then detrunked again to come back under the County Council. This happens usually where either the main road is diverted and the old road is detrunked or when a brand new road is built such as a motorway. Not only the responsibility for maintenance transfers on trunking or detrunking, but also the ownership of any land held for highway purposes, but in practice the deeds will stay with the acquiring authority unless specifically requested by the succeeding authority.
Prior to the Local Government Act of 1972, the County Council was only responsible for roads within the former Rural District Councils and principal roads, the road in 'towns' were the responsibility of the Urban District Councils. The 1972 act transferred responsibility to the County Councils, including the ownership of any land held for highway purposes. The County Council then delegated powers back to the District Councils who maintained the roads as our agents. Although the County Council has inherited the freehold of any land previously conveyed to the former Urban District Councils, in practice, the District Councils have kept the deeds.This agency arrangement was withdrawn in 2003 and the County now manages the highway network directly.
The 1992 the Local Government Act set up Southampton and Portsmouth as unitary authorities and they reassumed their old highway powers. Therefore they not only got back their old highway land, but also any land acquired by the County Council between 1974 and 1992. In this case the deeds were transferred from the County Council.
Although highways have a well documented history for the last 200 years, for most, their origins are shrouded in the distant past. Very rarely can the County Council show title to land now forming the highway (except when land has been specifically acquired for improvements). Most roads existed long before the County Council was created. As such the County Council is only responsible for maintaining highway rights and has no claim to ownership.
For highway rights to be established the legal view is that land must have been used as highway for a period of 20 years. Once highway rights have been established, then highway rights can only be extinguished by a formal order. The extinguishment order simply removes the public right of use, it does not concern ownership. Who owns the roads when highway rights are extinguished? It is unlikely that anyone could show title to the land which has been highway for longer than records exist. The legal assumption therefore is that in the absence of an owner, adjacent landowners can claim up to half the width of the highway. However if any land forming part of the highway has been acquired by the highway authority, both that and the associated half width of the original highway revert to the unencumbered freehold of the authority. In the case of former turnpikes, it is arguable that as they were vested in the County Council by the act of 1888, that the County Council owns the freehold of the road.
The actual carriageway of the road, i.e.that which is surfaced only represents a strip on which motor vehicles may drive. The highway was only divided into carriageway, footways and verges in relatively modern times (blacktop was invented at the beginning of the 20th century. Before this carriages, horses, cattle, people etc would have wandered freely across the whole width of the highway. Hedges, fences, etc were therefore put up to separate private properties and prevent passing traffic from straying onto private land. Therefore as a general rule of thumb it is the private boundary fences that demark the extent of the highway, there is no standard width of the highway.
As highway rights can only be removed by formal order, should an adjoining owner fence off part of the verge, he is guilty of an encroachment (adverse possession or 'squatters rights' does not apply in the case of highway). However if an owner moves his boundary back and effectively allows the public to use his land as if it was part of the highway, then highway rights can become established.
There is an exception to this which concerns Registered Common and Village Green. Here there are no verges since common rights supersede highway rights. Thus the highway is confined to the carriageway itself. However, on occasion existing highway land was registered as Common or Village Green in error, in such case as registration is 'definitive', such land is both highway and Common/Village Green. Please note that where the highway authority has formally acquired land from the Common/Village Green, then these will be highway.
Mark Housby holds records of all land acquired by the County Council for highway purposes from the 1950s and has access to records of earlier highway improvements back to the nineteenth century, together with a considerable amount of Secretary of State for Transport material. Mark is managing an ongoing project to produce a definitive record of highway land on GIS (please click on the link to highway land ownership on the menu on the left). Please ring 01962 832194 for further information.