Highway: why the public road is wider than the tarmac

The highway is not the tarmac. In law it is the strip of land over which the public has a right to pass and repass, and it normally includes the carriageway, the pavement, the grass verge, the ditch in some cases and the airspace above. So the boundary of the public highway often sits at your front hedge, several metres behind the kerb, and anything you build, plant or swing a gate into within that strip needs the highway authority's consent as well as planning permission.

The legal definition and who owns what

Section 328 of the Highways Act 1980 defines a highway as the whole or part of a highway other than a ferry or waterway, which is circular enough to be useless on its own. The working definition comes from common law: a way over which the public has a right to pass and repass at all times, without hindrance.

Ownership is split in an odd way. Where a highway is maintainable at public expense, the surface and enough soil beneath it to support and drain it vest in the highway authority. The rest of the subsoil usually stays with the adjoining owners, who are presumed to own up to the middle of the road unless the deeds say otherwise.

That presumption matters more than it sounds. It means you may own the soil under half the lane while having no right to do anything on the surface, and it means a neighbour cannot grant you rights over highway land they appear to own on the title plan.

Adopted and unadopted roads

A road maintainable at public expense is adopted. The highway authority repairs it, lights it and is liable for its condition. Every county, unitary and London borough highway authority keeps a List of Streets under section 36(6) of the Highways Act 1980, and that list is the practical answer to whether a road is adopted.

An unadopted road, sometimes called a private street, is maintained by the frontagers. New estate roads are usually built to adoptable standards and then adopted through an agreement under section 38 of the Act, often with a bond. Until that agreement completes, the road is private, and buyers of new houses sometimes discover the position years later.

Do not confuse the List of Streets with the definitive map of public rights of way. The definitive map records footpaths, bridleways, restricted byways and byways open to all traffic. A footpath crossing your field is a highway, and diverting or stopping it up needs a separate order.

Verges, footways and the extent of highway land

The usual rule of thumb is that the highway extends from boundary to boundary, meaning the fence, hedge or wall line on each side rather than the edge of the surfacing. Grass verges, footways, service strips and street furniture normally sit inside it.

There are exceptions everywhere, which is why a rule of thumb is not evidence. On a rural lane the boundary may be an ancient hedge line far back from the metalled surface. On a 1970s estate the verge may have been transferred to the housing developer and never adopted.

The only reliable answer comes from the highway authority's records. Ask its highway records or search team for a highway extent plan for the frontage. It is usually a modest fee, it comes with a plan, and it settles arguments that otherwise run for months.

Why the boundary matters for extensions, walls and gates

Householder permitted development interacts with the highway in several places, and getting the line wrong turns a lawful project into an unlawful one.

• Gates, fences and walls next to a highway used by vehicles are limited to 1 m in height under permitted development, and 2 m elsewhere.
• No part of an extension may project beyond a wall forming the principal elevation where that wall fronts a highway.
• Gates must not open outwards over the highway, which is an obstruction offence regardless of planning status.
• Scaffolding, hoardings and skips placed on the highway need a licence from the highway authority.
• Oversailing the highway with eaves, a canopy or a first floor projection needs a specific agreement.

Obstructing the highway without lawful authority is an offence under section 137 of the Highways Act 1980, and the highway authority can require removal. It is entirely possible to hold a valid planning permission for something you may not lawfully build, because planning permission does not authorise interference with the highway. Our note on what permitted development rights actually cover sets out where those householder limits sit.

Forming or altering a means of access is also an engineering operation, which is why it counts as development under section 55 even when nothing is built above ground.

Section 184 crossings and section 278 works

Two sections come up constantly on domestic and small development projects.

A vehicle crossing over a footway or verge is authorised under section 184 of the Highways Act 1980. The highway authority specifies the construction, and it either builds it or approves a contractor to do so. It is a separate consent, with its own fee and its own timescale, and it is not granted automatically because you hold planning permission. The practical steps are set out in our guide to dropped kerb applications.

Larger works in the highway, such as a new junction, a footway widening or a right turn lane, are delivered through an agreement under section 278. These are negotiated, they carry the authority's costs and commuted sums, and they take months rather than weeks. On a small site, a section 278 requirement is often the item that delays a start on site.

Illustrative example: a householder is granted permission for a two storey side extension and a new drive. The extension is straightforward. The drive needs a section 184 licence, and because the verge is highway land, the applicant also needs the authority's agreement to remove a section of hedge that turns out to sit inside the highway boundary. The hedge, not the extension, sets the programme.

Checking the highway record before you design

Do this early, because it costs little and it changes designs.

1. Ask the highway authority for a highway extent plan and confirmation of adoption status for the frontage.
2. Check the List of Streets entry, and if the road is unadopted, find out whether a section 38 agreement exists.
3. Check the definitive map for any public right of way crossing the site.
4. Obtain your title plan and note that the red line boundary and the highway boundary are different things.
5. Where a splay, drive or wall falls inside highway land, raise it in the pre-application enquiry rather than at validation.

Highways issues rarely cause refusal on their own. They cause delay, and delay on a small project is expensive. If you are working out which supporting documents your scheme needs, browse the report types by category and start with the transport group, then enter your postcode on PlanScope for a view of the constraints on your site.

This is general guidance, not legal advice. Highway records and adoption status vary, so confirm the position with your 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.