Part 9 and 10: repairs to private ways and to services

Part 9 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 permits the carrying out, on land within the boundaries of an unadopted street or private way, of works required for the maintenance or improvement of that street or way. Part 10 permits works for inspecting, repairing or renewing a sewer, main, pipe, cable or other apparatus, including breaking open any land for that purpose. Both are narrow and both are useful. Neither of them permits the construction of something that was not there before, and that is the distinction every dispute turns on.

So the first question on any track project is not what you are allowed to do to it. It is whether a private way already exists on the line you intend to work.

What Part 9 permits on unadopted streets and private ways

The right applies to land within the boundaries of the street or way. That phrase does the work: the permitted area is the existing corridor, not a strip of adjoining field you would like to add to it. Widening by taking in land outside the existing boundaries is outside the class.

Within those boundaries, the works have to be required for maintenance or improvement. Resurfacing, patching, regrading a worn running surface, clearing and reinstating side drainage, replacing a failed sub-base and installing passing provision within the existing width all sit comfortably in that description. The reference to improvement is wider than repair, which is why a rutted farm track can lawfully be brought up to a surfaced standard under this class.

What falls outside it:

• a new access or a new length of track where no way existed
• widening beyond the existing boundaries
• raising or lowering the level materially, which becomes an engineering operation in its own right
• creating a hardstanding or a turning area off the line of the way
• walls, gates and structures, which are not works to the surface of the way

An access onto a public highway is a separate question again, and the formation of a means of access to a highway that is not a trunk or classified road is dealt with elsewhere in the Order, in connection with other permitted development.

Maintenance against improvement and new construction

The test in practice is whether a reasonable observer would say the way has been maintained or improved, or whether something new has been built. Three factual questions decide it.

First, is there an existing way on the ground, evidenced on historic mapping, aerial imagery or by physical remains. A line on a deed plan is not a way. Second, does the work stay within the boundaries of that way as they can be identified. Third, does the finished result perform the same function as before, or does it serve a materially different use.

The third question is the one people forget. Upgrading a field track so that it can carry construction traffic to a new dwelling may be within Part 9 as works, while the use of the track for that purpose can still be a material change of use of the land. The works right does not authorise the use.

Where the way is unadopted but serves several properties, check the title position before spending money. Rights of way, maintenance covenants and the ownership of the surface are civil matters that permitted development does not touch, and the same care applies as when proving what works are reasonably necessary under other classes.

Part 10 repairs to sewers, mains and cables

Part 10 is the quiet workhorse of the Order. It permits works for inspecting, repairing or renewing any sewer, main, pipe, cable or other apparatus, including breaking open land, a street, a railway or a watercourse for that purpose.

Two points about its scope. It covers repair and renewal, so replacing a failed pipe with an equivalent new one is permitted, but laying a new service on a new route is not, because there is nothing to repair or renew. And it applies to the works, not to associated above-ground structures, so a new chamber cover is fine while a new pumping station housing is not.

Statutory undertakers have their own rights elsewhere in the Order and their own street works regime under the New Roads and Street Works Act 1991 for works in the public highway, with notice periods, permit schemes and reinstatement standards. Part 10 is what covers a private drainage repair across a garden or a field.

Reinstatement after works

Permitted development does not mean no obligations. Where land is broken open, the land has to be made good, and that duty arises from the general law and from any easement under which the works are carried out rather than from the Order.

Practical sequence that avoids argument:

1. Photograph the ground, the surface materials and any boundary features before starting.
2. Record the depth and position of what you expose, because the next person will need it.
3. Reinstate in the same materials and to the same profile, including hedge banks and verges.
4. Where topsoil has been stripped, store it separately and replace it last.
5. Where trees are nearby, keep the excavation outside the root protection area or work under arboricultural supervision.

On a surfaced private way shared with others, agree the reinstatement standard in writing before the digger arrives.

Agricultural tracks and the Part 6 overlap

On an agricultural unit the position is different and in some respects wider. Part 6 permits works reasonably necessary for the purposes of agriculture on a unit, including the formation or alteration of a private way, subject to unit size thresholds and to a prior notification procedure. On units of five hectares or more, the authority has to be notified of the siting and means of construction of a private way before works begin, and it can require details to be submitted for approval.

Two traps follow. The way has to be reasonably necessary for agriculture on that unit, so a track built under Part 6 and then used to serve a new house or a holiday let is being used for something the right never covered. And the prior notification is a condition of the right, so starting without serving it leaves the works unauthorised even where everything else qualifies.

If the real purpose is access to a development site, the honest route is a planning application, with the track shown and justified.

Designated land and ancient woodland caution

Several overlays bite regardless of the permitted development position. Works to a tree protected by a Tree Preservation Order or in a conservation area need separate consent or notification, and track construction over roots is the classic breach. Operations likely to damage a site of special scientific interest need Natural England's consent under the Wildlife and Countryside Act 1981, and that applies to a landowner carrying out works within the designated area.

Ancient woodland deserves particular care. There is no permitted development right that makes it acceptable to drive a new surfaced track through irreplaceable habitat, and even works presented as maintenance of an existing route can cause damage through compaction and drainage change. Where a way runs through or beside ancient woodland, get an arboricultural and ecological view before specifying the construction. Hedgerow removal engages the Hedgerows Regulations 1997 separately.

Where resurfacing becomes an engineering operation

The line is crossed by scale and by permanence. Rolling stone into existing ruts is maintenance. Excavating a formation, laying a geotextile and a bound surface, forming cambers, and constructing ditches and headwalls on a route that was previously two wheel marks across grass is construction, however it is described in the method statement.

Signals that an authority will treat the works as needing permission include a material change in level, a change in the apparent width of the way, new drainage infrastructure discharging to a watercourse, and the appearance of a surface that would be unusual in the landscape. The last is what generates complaints, because a pale stone track is visible for miles in open country.

Where there is doubt, a Planning Statement explaining the existing way, the works proposed and the basis on which they fall within the Order gives the authority something to agree with, and an application for a certificate of lawfulness is the formal route to certainty. Surfacing questions closer to home follow the same logic as front garden paving and permeable surfaces. PlanScope drafts those documents from your answers about the site, and you can enter your postcode on the home page to see what a rural application is likely to need.

This is general guidance, not legal advice; check the position with your local planning 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.