Highways and Rights of Access

From motorways to public footpaths, National Parks to AONBs, highways and public rights of access issues can have huge impacts on the lives, properties and profits of very many residents, companies and others. Members of chambers are at the forefront of cases in these areas.

Public and Administrative law issues are common in this field, as so many decisions regarding highways and public rights of access are made by local authorities, Secretaries of State or government agencies. Examples include a local authority decision to make an order to add a new public footpath, a Secretary of State decision to endorse a development consent order for a new length of motorway and a Natural England decision to designate a new stretch of the King Charles III England Coast Path.

It is very common for highways and public rights of access cases to afford an opportunity for representations, objections and legal challenge, whether by statutory right or by way of judicial review claim. It is also very common for these kinds of cases to afford opportunities for oral advocacy at specialist hearings, inquiries or in court. Members of chambers are very well placed to assist clients in all aspects of this work. A public footpath may seem to be a humble way over the ground, but they are highways nonetheless and the law pertaining to them is highly complex. The process for interpreting and modifying the definitive map and statement for an area is very technical.

At the other end of the spectrum, the development consent order process for a new motorway is an enormous exercise and one which often directly impacts very large numbers of residents and businesses. Both kinds of cases generate public law issues of procedure and substance, engaging a wide range of statutory provisions (such as sections of the Highways Act 1980, Wildlife and Countryside Act 1981 and Planning Act 2008) and case-law. Public rights of access cases are often just as complex, and contentious, given the invariable conflict between landowner and public. Cases under this heading include village greens cases (such as TW Logistics Ltd v Essex CC [2021] AC 1050, which went to the Supreme Court), Darnall v Dartmoor NPA [2023] Ch 141 (on the claimed right to wild camp) and R (Day) v Shropshire Council [2023] 2 WLR 599 (on land subject to a statutory trust for the benefit of the public, which also went to the Supreme Court). Members of chambers appeared in all three of these cases.

Planning

Barristers are regularly in action at development consent order examinations, at public inquiries or in court. Regular clients include the Secretary of State, Highways England and highway authorities. Many barristers are registered for Public Access instructions.

Cases include:

• Trail Riders Fellowship v Hampshire County Council [2019] EWCA Civ 1275;
• Level crossing closures at Gipsy Lane, Stowmarket;
• Anglia Level Crossing TWAO [2017-19];
• The A303 Stonehenge DCO [2019];
• London Borough of Southwark v TFL [2018] UKSC 63;
• Petworth Road [2018] – proposal to divert bridleway away from drive of private dwelling;
• Warren Farm [2017] – claimed public footpaths across land earmarked for Queens Park Rangers Football Club’s new training ground;
• Harrow School [2017] – proposal to divert two public footpaths away from rugby pitches, football pitches and tennis courts;
• M4 smart motorway [2015-16] – lengthy development consent order examination into £862m project to convert 50km of the M4 motorway into a smart motorway;
• Port of Immingham [2014-15] – lengthy development consent order examination into A160/A180 road improvements in Lincolnshire;
• Knutsford to Bowdon [2013-14] – lengthy development consent order examination into £212m project to construct new A556 dual carriageway road scheme in Cheshire;
• Tonbridge to Pembury inquiry [2013-14] – lengthy public inquiry into proposal to dual 4km of the A21 in Kent;
• Trail Riders Fellowship v Devon County Council [2013] EWHC 2104 (Admin) – statutory High Court challenge to the validity of a traffic regulation order preventing the use of motor vehicles along a 370m stretch of a country road; and
• Priors Marston [2011-12] – public inquiry into footpath extinguishment order made under section 118 of the Highways Act 1980.

Property

Landmark’s barristers advise individuals and highway authorities on all aspects of all types of highways ranging from rights and obligations and issues arising over their creation by dedication (and acceptance) or by statute, their subsequent maintenance or improvement, or restrictions on their use, and to their diversion or stopping up.

The work can also involve addressing various related matters such as rights of adjoining owners, or interaction with undertakers’ apparatus, unauthorised obstructions or issues arising in connection with bridges or waterways as well as matters related to development control. Barristers also appear at associated hearings or inquiries. 

We can assist in marshalling and testing evidence in connection with all aspects, ranging from proposals for modifications to definitive maps to the intricacies of highway design and engineering. For motorway and trunk road schemes, or for bypasses and relief roads, CPOs or other orders or procedures such as those involved for stopping up private means of access or temporary diversions may also be involved. The range of potential rights, obligations, orders and procedures which can arise for all categories of highways often requires interactions with a wide variety of expert witnesses and legal principles addressing a sometimes surprising breadth and variety of disciplines. Landmark barristers also advise and appear in proceedings relating to streets under the New Roads and Street Works Act 1991.