Bakers Wood is a private estate and thus has private road status. A road can be defined as either a “highway maintainable at the public expense” or a “private road”. Below provides some detail.
What is a “highway maintainable at the public expense”?
A “way” is a road, track or path
A “highway” is a way with a public right of way, which, under Common Law: 1) the owner of the land allows the public to use AND 2) The public accept this offer, by using it. After a “period of time”, the way then becomes a highway.
Prior to 1835 and the Highways Act, a highway automatically became the responsibility of the parish containing the road.
After 1836, The Highways Act stated that there would be no automatic public responsibility for the road, unless a specific decision was made to do so, this was known as “adopting” the road. A road where this decision was not made, was and is still known as an “UNADOPTED ROAD”. Middleton Road is an unadopted private road.
Common Law however was unchanged, so curiously, it became possible for a road built created after 1936 to become a highway WITHOUT becoming a public responsibility
Highways Act 1980 [updating the 1835 and subsequent updates] said that a highway which is a public responsibility are formally known as a “highway maintainable at the public expense”, and such a road belongs to the local authority, is a highway with public access and the local authority is responsible for maintaining the road.
A local authority must by law maintain and make available a list of such highways.
What is a "Private Road"?
Any road that is not maintainable at the public expense is a private road.
As mentioned above, a private road can become a highway. So an unfairness arises, because the public may use the road and cause wear and tear and intrusion, but the local authority has no need to contribute to the upkeep of the road nor compensate for any disturbance by the public.
Middleton Road is a highway and gives access to residential properties in different ownerships and the use is therefore shared.
Public use means the local authority is obliged to protect the public by enforcing the law within Road Traffic Act 1988, Road Traffic Regulation Act 1984 and the Highways Act 1980. The law also gives utility companies special powers to install pipes, cables and other equipment. Local Authorities are entitled to enter land to inspect. So a Private Road is not very private, however the owners of a Private Road may be allowed to regulate parking and to control development by virtue of granting or refusing new rights of way.
Ownership of a Private Road
Private roads are land and can be owned by individuals or groups or companies, usually, but not necessarily comprised of frontagers of the road.
Like other land, private roads can be sold and transferred as part of an estate.
As an owner there is an entitlement to use the road for access or any other use so wished, subject to normal planning regulations which takes into account the needs of others – in practical terms, this means the road can’t be blocked. In the event that the road is a highway, this would constitute a criminal offence.
Historically, a landowner may have laid out a road for some purpose such as access and at some points, houses may be built along the road. Alternatively, a block of land may have been sold to a developer, who would then lay out a road to service the houses he built. The ownership of the road may have been retained by the landowner or arrangements made to transfer ownership and responsibility for maintenance. Often, the road would become a highway and pre-1835, automatically adopted, but post 1836, if the necessary actions were not taken, then the road or highway if there was public access, remained unadopted and ownership of the land may not even have been recorded in the Land Register, and over time, the trail of ownership became lost. Where the evidence of ownership is missing, the law provides a presumption that each frontage owns the half the width of the road along his frontage. When land is subsequently sold, this part of the part of the road is presumed to be included in the title, even when the description and plan of the plot for sale exclude the road! And so on for each successive sale. We believe that Middleton Road has presumed ownershipby all the individual frontagers.
If the road is indeed not recorded in the Land Register, it is possible for all [or most], of the frontagers to rely on this “presumed ownership” and to make ajoint application to the Land Registry for the road [or most of it if not all residents are willing to participate] to be registered in the name of a company or a Residents Association.
Ownership is a very complicated subject, the above is a huge simplification and there are lots of complexities in specific circumstances!
What are the public’s rights on an unadopted private highway?
The public has the right to come and go, including stopping, eg for a break, to minor repair a vehicle or to load and unload. The public could come and go as much as they chose, there is no requirement to justify what they are doing and if the road is well used, wear and tear may be significant, but the law does not provide for compensation to be paid to the road owner.
The public does NOT have a right to use the road as a car park or for commercial gain, eg a food van and this would amount to trespass.
Civil law imposes duties of care on an occupier of the land [i.e. a landowner or an Association that controls the land] to have regard for the safety of those who come on to the land and maybe liable to pay compensationin injury or damage is caused due to the failure to exercise a sufficient duty care or by negligence. A relevant example – an injury or damage caused by a pothole to a member of the public. Again a very complicated area, and as a Residents Association, we protect ourselves with a PUBLIC LIABILITY INSURANCE POLICY against civil claims.
Can a Private Road become maintainable at the public expense?
Yes , but we are unlikely to comply with South Buckinghamshire Council criteria and would have to pay to make the road up to adoption standard.
What are the responsibilities of a Resident Association that manages the road?
Minor maintenance
Resurfacing
Tree surgery overhanging road
Regulating parking
Disclaimer: The above information is summarised from the information provided by our membership of the Private Roads Association and is for guidance only and cannot not be relied upon for legal purposes. It is a complicated area and you should consult your solicitor and / or South Buckinghamshire Council for information you can place reliance on.