Repairs to private ways and unadopted roads

Repairing an unadopted road or a private way is permitted development under Schedule 2 Part 9 of the General Permitted Development Order 2015, provided the works stay inside the existing boundaries of the way and amount to maintenance or improvement rather than construction of something new. That is a useful right on a farm or an estate with a long access drive, and it is narrower than most owners assume.

The two questions that decide whether you can rely on it are where the works stop and what you are actually doing. Resurfacing a rutted track between its existing hedges is maintenance. Widening it by two metres, extending it into a field or building a new spur is not.

What Part 9 permits and for whom

Class A of Part 9 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. An unadopted street is one that is not a highway maintainable at public expense, so the right covers private drives, estate roads that were never adopted, and farm access tracks.

The right is not limited to a particular class of applicant. Anyone entitled to carry out the works can rely on it, which in practice means the owner or someone with the owner's authority, or a management company for an unadopted estate road.

Two conditions define it. The works must be within the boundaries of the way as it exists, and they must be required for maintenance or improvement of the way. Nothing in Class A permits a building, a structure or anything beyond the running surface and its immediate construction.

Where the way is on agricultural land, the separate agricultural rights are wider. Part 6 permits the provision, rearrangement or replacement of a private way on a qualifying agricultural unit where that is reasonably necessary for agriculture, subject to a prior approval application on siting and means of construction. That is the route for a wholly new track, and it does not help with an access serving a dwelling.

Maintenance and improvement, or new construction

The distinction matters because it is the boundary of the right, and because it is the question an enforcement officer will ask.

Works that sit comfortably within maintenance or improvement include filling potholes, replacing a failed sub-base, regrading and rolling a stone surface, laying a bound surface over an existing unbound one, renewing edging, and reinstating a crossfall so water runs off properly. Works that go beyond it include widening beyond the existing boundaries, lengthening the way, creating passing places outside the current lines, forming a new junction, and constructing a way where none existed.

The tricky cases sit between the two. Re-aligning a bend within the existing boundaries is arguable. Raising the level of a track substantially, so that it becomes an embankment across a field, is an engineering operation whether or not it follows the old line.

Where the answer carries cost, apply for a certificate of lawfulness for a proposed use or development under section 192 of the Town and Country Planning Act 1990 before you start. That certificate is the only formal way to confirm that works are lawful, and it costs far less than defending an enforcement notice.

Materials and levels

Class A does not restrict materials, which surprises people. A stone track can be surfaced in tarmac or concrete under the right, provided the works are within the boundaries.

Other regimes catch up with you, though. In a conservation area or a National Landscape the visual effect of a bound black surface on a rural lane is real, and an Article 4 direction can remove the right where the authority considers the effect unacceptable. Check the local land charges register and the council's list of directions before committing to a specification.

Levels deserve care. A resurfacing job that adds 150 millimetres across the whole width changes where water goes, changes the relationship with adjoining land, and can bring the surface above a neighbouring threshold. Survey the existing levels, design to them, and record what you did.

Consider the visual outcome separately from the legal one. A permeable bound gravel finish reads as a lane; a black bituminous finish with a concrete kerb reads as a road, and in a sensitive landscape that difference generates complaints even where no permission was needed.

Drainage from the repaired surface

Surfacing a track converts a permeable surface into one that sheds water, and the water has to go somewhere that is not a neighbour's field or the public highway.

Design the drainage as part of the works. Maintain or reinstate a crossfall to a roadside ditch or a swale, install cut-off drains where the track runs downhill towards a highway junction, and provide a silt trap before any discharge to a watercourse.

Where the works affect the flow in an ordinary watercourse, including a ditch, consent is needed from the lead local flood authority under the Land Drainage Act 1991. Culverting a length of ditch to widen a track is the classic example, and it needs consent whether or not the surfacing itself is permitted development.

On larger schemes, set the arrangements out in a Drainage Strategy so the position is documented. Discharging track run-off onto the adopted highway will attract the highway authority's attention quickly, and it is a problem to solve at design stage rather than after the first heavy rain.

Trees and hedgerows alongside the route

The verge vegetation is where most track projects get into trouble, because the works themselves are lawful and the clearance is not.

Three regimes apply.

• A tree protected by a Tree Preservation Order cannot be cut down, topped, lopped or uprooted without consent, and damage to roots within the protected area counts
• In a conservation area, six weeks written notice to the council is required before works to most trees above the relevant size
• Removing a length of countryside hedgerow generally requires a hedgerow removal notice to the local planning authority under the Hedgerows Regulations 1997, with a waiting period before work can start

Root protection areas are the silent risk. Excavating a new sub-base within the rooting zone of a mature roadside oak will damage it, and a Tree Survey prepared to the relevant British Standard will set out the protection area and a no-dig construction specification if one is needed.

Nesting birds are protected during the breeding season, so programme hedge and verge cutting outside it, or have the vegetation checked immediately before work.

Rights of way crossing the works

A public right of way over a private track does not disappear because the track is privately owned. Byways, restricted byways, bridleways and footpaths can all run along or across an unadopted way.

Works to the surface of a public right of way generally need the highway authority's agreement, and carrying out unauthorised works to a highway can be an offence. The authority will also want the route to remain passable during construction, or a temporary closure to be applied for.

Where construction traffic will use the route, a short Construction Traffic Management Plan covering wheel washing, signing, timing and the reinstatement of any damage is worth preparing even when nobody has asked for one.

When a planning application becomes necessary

Four situations take you outside Part 9. Works extending beyond the existing boundaries of the way. A new way, rather than repair of an existing one. Works forming or altering an access onto a public highway, which is governed by different provisions and, where the road is classified, usually needs permission. And works on land where the right has been removed, including sites of special scientific interest, land within the curtilage of a listed building and areas covered by an Article 4 direction.

Where an application is needed, keep it modest and evidence-led: existing and proposed levels, a construction section, a drainage layout, a tree protection plan, and a short statement explaining why the work is needed. Set that statement out in the way you would structure a Planning Statement so the officer can follow it.

Enter your postcode on PlanScope to see which documents an access or track scheme on your land is likely to need.

This is general guidance rather than 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.