Checking the extent of the public highway

The public highway is almost always wider than the tarmac. Verges, footways, grass strips and sometimes a metre or two of what looks like a front garden can all be publicly maintainable, and a scheme that puts a wall, a bin store or a parking space on that land has a problem that no planning permission will solve.

The record that answers the question is the list of streets kept by every highway authority under section 36 of the Highways Act 1980. It is a statutory record, it is open to inspection, and it is not the same thing as a map of the highway boundary.

Why the boundary matters before you apply

Four things turn on it, and all of them cost less to resolve before submission.

Whether you can build what you have drawn. Anything within the highway boundary is not yours to develop, and the highway authority cannot grant planning permission for it.

Whether the access works need a section 278 agreement. Works to the existing publicly maintainable highway are carried out under an agreement with the highway authority, at the developer's cost, and the programme for that agreement is measured in months.

Whether the ownership certificate on the application form is correct. A red line that crosses adopted highway means the applicant is not the sole owner of the application site, and the certificate has to reflect that.

Whether the visibility splay you have shown can be kept clear. A splay across third-party land is a very different proposition from one across highway land, and inspectors treat them differently.

The design consequences run deep enough that checking the extent of adopted highway before you design is the better sequence than checking it before you submit.

The list of streets and what it actually records

Section 36 requires every highway authority to keep a list of the streets in its area that are highways maintainable at public expense, and to make it available for public inspection free of charge. Most authorities publish it online.

Read carefully what it gives you. It records that a named street is publicly maintainable. It does not, in itself, define the width or the boundary of that highway. An authority may publish an accompanying plan, and that plan is generally described as indicative, drawn at a scale that cannot resolve a metre.

Three other records fill the gaps. The authority's highway records team holds the underlying documents: adoption agreements, section 38 plans, stopping up orders and historic records of when a street became maintainable. The National Street Gazetteer holds a street record with a unique street reference number and the maintenance responsibility, which is useful for confirming status quickly. And the local land charges and highway enquiries returned with a property search will state whether the roads abutting the property are maintainable at public expense.

None of these is a title plan. Highway status and land ownership are separate questions, which the next section explains.

Verges, footways and the hedge to hedge presumption

Two common law presumptions do a lot of work here, and both are rebuttable.

Where a highway runs between fences, hedges or walls, the whole strip between them is presumed to be highway, not merely the metalled surface. That presumption means a wide grass verge behind a footway is usually highway, and so is the strip between the footway and a boundary hedge. It is the single most common source of surprise on rural and suburban sites.

Separately, the adjoining landowner is presumed to own the subsoil to the centre line of the road, with the surface and so much of the subsoil as is needed for the highway vested in the highway authority. So you may own the land under the verge and still have no right to build on it, because the public right of passage and the authority's interest sit on top.

The practical consequence is that a Land Registry title plan showing your boundary running to the road centre tells you nothing about whether you can put a fence there.

Where a public footpath or bridleway is involved rather than a carriageway, a different record applies and a different process governs any change, which is covered in more detail under public rights of way affected by development.

Highway land inside the red line and the ownership certificate

If the application red line includes any part of the publicly maintainable highway, the applicant is not the owner of the whole site, and the certificate on the form has to say so.

The usual course is to complete the certificate identifying the highway authority as an owner of part of the application site and to serve the prescribed notice on it. Councils vary in how strictly they enforce this, and some validation teams check it on every application with a new access.

Two practical notes. Keep the red line as tight as the application allows, and use a blue line for land in the applicant's control that is not part of the application. And do not omit the access works from the red line to avoid the certificate point, because a permission that does not include the access is a permission that cannot be implemented.

Where the access design itself is contentious, the evidence that carries weight is set out in what inspectors accept on highway objections at appeal, and the highway boundary is usually the first fact the inspector establishes.

Unadopted roads and private rights of access

An unadopted road is not on the list of streets, and the questions change completely. There is no public right of passage unless one has been dedicated, so access depends on private rights: an express easement in the title, a right acquired by prescription, or the benefit of a deed.

Check the Land Registry title for the right of way, its width, and any limitation on the use it permits. A right of way granted for agricultural purposes does not automatically extend to serving 12 houses, and the law on excessive user is a civil matter the council will not adjudicate. Planning permission does not grant or enlarge a private right.

Two further points on private streets. The advance payments code in the Highways Act 1980 can require a deposit from a developer erecting buildings on a private street, held against future street works. And where the intention is eventual adoption, the road has to be built to the authority's standard from the outset, because retrofitting construction depth and drainage to an adoption specification is rarely viable.

Structures over, under and on the highway

Even where the scheme does not build on the highway, it may touch it.

Existing structures already encroaching are a separate problem. A highway authority can require the removal of a structure erected on the highway, and a long period of undisturbed encroachment does not create a right against the public. Where a boundary wall or a fuel tank sits on highway land, raise it with the authority before the planning application rather than after, because a refusal reason based on encroachment is difficult to answer at appeal.

What to obtain and how long it takes

Build the evidence pack in this order and allow real time for it.

1. The published list of streets and any accompanying plan, which is usually available the same day.
2. The street record from the national gazetteer, confirming maintenance responsibility.
3. A formal highway records enquiry to the authority, asking for the adoption plan, the extent of maintainable highway and any stopping up orders. Allow several weeks, and longer where records are held off site.
4. Land Registry official copies and title plan for the site and, where relevant, the adjoining land.
5. A measured topographical survey showing boundary features, the back of footway, kerb lines and any change of surface, tied to the same coordinate system as the highway plan.
6. Where the answer is still unclear, a written pre-application enquiry to the highway authority asking it to confirm the boundary on a marked-up plan.

That last step is the one people skip and the one that resolves disputes. An email from a highway records officer confirming the boundary on a plan is worth more at appeal than any amount of inference from an online map.

Set the outcome out in the transport evidence. A short Transport Statement that opens with the highway boundary, the adoption status and the consents that will be needed answers the highway officer's first three questions before they are asked.

Enter your postcode on PlanScope to see which reports a site with a new access is likely to need.

This is general guidance, not legal advice. Check the position with your local highway authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.