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Only magistrates can remove vehicular rights under normal circumstances. Abnormal circumstances include Defence, Acts of Parliament (e.g. transport infrastructure) and for purposes of development under Town & Country Planning Act 1990 - but those are exceptions. n.b. A lone magistrate cannot do this, only two or more sitting together.
Highways Act 1980 s116 can be used to stop up or divert a Highway or part of it. It is mainly used for vehicular routes although it can be used for public paths and is most often used to stop up redundant bits of verge at the side of a Carriageway. It can be total or it can reserve Bridleway or Footpath rights.
Highways Act 1980 s117 gives the right for anyone to ask the Highway authority to apply to the magistrates to make an order to stop up a Highway under s116 of the Act on the grounds that the Highway is unnecessary - there are no other grounds allowed although a great many reasons why this happens.
There are a small number of consultees that the Highway authority must serve notice on before making the application to the magistrates, and notices must be posted on site and in the London Gazette and local paper. These consultees are the local council(s), affected utility companies and owners or occupiers of land crossed by or adjacent to the Highway. There is a 1 month period for them to respond. The local council (parish, district or, in Wales, community) has a veto and can prevent the application.
Assuming the formalities have been correctly carried out the Highway authority solicitor asks the magistrates to stop up the Highway in question and usually will call a highways or rights of way officer to give evidence that the Highway is unnecessary. If, and only if, the magistrates decide that the Highway is unnecessary then they have to decide whether it is expedient to stop up that Highway. A great many arguments can be put forward in the debate about the expediency or otherwise of the stopping up. Anyone who has the notice served on them, anyone who uses the Highway or anyone aggrieved by such an order has a right to be heard in court. You do not have to actually use the Highway in order to be able to object.
The Highway authority can, but doesn't have to, recharge the original applicant for the costs it incurs in making the application. It might not recharge the applicant part or all of the costs if it had previously given incorrect search information, for example. The rechargeable costs include the officer time and direct expenses, advertising costs and for a Diversion any costs of making up the alternative route. The advertising costs can vary tremendously for local papers but the London Gazette is quite expensive. Highway Authority solicitors are relatively expensive per hour, other officers relatively cheap, overheads can be included (e.g. 25% on top of the gross salary costs).
This procedure should not be used for stopping-up on the grounds of desirability, prejudice, nimbyism, damage to the Highway, prevention of crime, protection of SSSI, etc. Other legislation, particularly TROs under the Road Traffic Regulation Act 1984, exist for these purposes.
Bruce Peckett 4/2003 |
